CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Louise Charette
Indexed as: (Re) 1802-00392
DECISION
Introduction
1The Criminal Injuries Compensation Board (CICB) is terribly sorry to learn of the tragic and violent death of [Name] (the "Victim"), who died on [date], 2017. In this case, a Young Offender was convicted of manslaughter and arson causing bodily harm.
2The Applicant submitted an Application and is seeking financial compensation from the CICB in accordance with the Compensation for Victims of Crime Act, RSO 1990, c. C.24, as amended (the “CVCA”). It appeared from the information on file that the applicant was claiming compensation under s. 5(a) of the CVCA on the basis that he suffered “mental and nervous shock” as a result of witnessing the Victim's injuries at the hospital.
3Based on the information submitted to the CICB, it also appeared that the Applicant was seeking compensation for loss of wages. The income loss section of the Application provided information with respect to his spouse’s income loss.
Issues
4In deciding this Application the CICB must consider the following:
a. Did the Applicant experience “mental or nervous shock” and, if so, the appropriate award of compensation.
b. Did the Applicant incur wage loss as a result of the crime of violence. To determine whether the Applicant is entitled to compensation for this loss, he must provide reliable evidence to support his claim.
Decision
5The CICB denies the claim for the reasons set out below.
Documentary Evidence
6The CICB received the following documents with respect to this claim: The Application, media reports, police synopsis and witness statement.
7The Applicant writes that the Victim, who was his sister in law, was an employee at a group home for troubled youths and that on the date of the incident, she was assaulted by a female resident who then set the residence on fire. The Applicant indicates that during that evening, his wife received a call that the Victim was at the hospital on life support as a result of a fire and that they needed to attend.
8The Applicant indicated to the CICB that when he arrived at the hospital there was a lot of police presence. He recalled that he was mainly there to comfort the Victim’s children. At some point, he went to the room where the Victim was lying in bed.
9The police synopsis indicates they received a call at approximately 15:30 reporting that a youth was causing a disturbance at a youth residential facility. They received additional calls reporting a fire and that a youth was currently out of control.
10The synopsis makes note that there was a policy at the residence which instructed staff to secure themselves and any other residents in a safe location when a resident was out of control. As a result, the Victim went to the second level of the residence and locked herself in a bedroom and contacted 911. While the Victim was speaking with the call taker, the fire alarm could be heard however fire was not suspected at this time as it was noted that the alarms are set off regularly by the residents. The phone then got disconnected.
11Once at the location, an officer attempted to enter the residence but was unable to due to extreme amounts of smoke. The front of the house was said to have been engulfed in flames. The officer observed a female who was on the ground on her hands and knees screaming and crying stating “I’m sorry, I’m sorry, I’m sorry”. Fire personnel entered the residence through a bedroom window and were able to locate two victims lying on the floor, who were described as non-responsive. Both were transported to the hospital.
12Once at the hospital, the Victim was immediately put on life support. It is noted that she remained in the emergency for the evening but was transferred to the ICU in the early morning hours. As her family had agreed to organ donation, she was kept on life support for organ harvesting to take place. The police information notes that a post mortem examination was conducted and that the pathologist found the cause of death to be related to complications of smoke inhalation.
13The media report confirms that the fire broke out at the facility following a disturbance involving the Young Offender. It is noted that two workers had taken another resident to a second-floor bedroom and waited for the Offender to calm down as this was part of a pre-arranged plan to keep everyone safe and avoid having to restrain the teen. The report indicates that the sliding glass door in the room where the victims were found was bolted shut and the only window, which was in a gable off the room, was too small for the Victim to escape. The fire trapped a fourteen year old resident and the two caregivers in this bedroom. It confirms that a 17 year old resident was charged with two counts of second-degree murder and one count of arson causing bodily harm in connection to the incident. The teenager and the Victim died as a result of this incident.
The Hearing
14The hearing was conducted by teleconference and the Applicant provided testimony. At the outset, he indicated that he was not aware he was claiming for MNS and that he had just filled out the paperwork as suggested by a family member.
15The Applicant testified that on the day of the incident, his mother-in-law called his wife and told them that the Victim was at the hospital and that they needed to attend. They were not provided with additional details at this time. Once at the hospital, they located the family in a room. The Applicant recalled spending a lot of time with the Victim’s children in a room, trying to figure out what had happened. A police officer eventually came into the room and explained the situation and that the Victim had been injured.
16The Applicant testified that he was with the Victim’s children during the entire time he was at the hospital and that he was trying to support them. At some point, he recalls going to the trauma room to see the Victim along with her children and his wife. He advised the CICB that he wanted pay his respects and to say goodbye. He understood that she was on life support to allow for organ donation. He remained in the room for approximately two hours. The Applicant testified that he observed injuries on the Victim’s body stating she was badly bruised, that there was swelling of her head and burn marks on her arms and hands.
Mental and Nervous Shock
17Under the CVCA, an individual, who is not the direct victim of violence, may be eligible for compensation if able to establish that he or she has sustained the profound injury known as “mental or nervous shock”. Mental or nervous shock is a legal term rather than a medical diagnosis. In the context of the CICB, applicants for MNS are eligible for compensation if the criteria below are met and if the deceased is compensable as a victim of a crime of violence under section 5(a) of the Act.
18The criteria was set out by the Courts and is applied by the CICB when assessing a claim for “mental and nervous shock”. In such claims, an applicant must provide evidence to establish that the incident was exceedingly violent, that they were present at the scene of the incident or came onto the scene of the incident while it unfolded or in the immediate aftermath, that they shared a close relationship to the deceased, and that they suffered significant psychological or psychiatric injury as a result of the immediate impact of the occurrence that would generally require therapeutic treatment. To be compensable, all of the criteria must be met.
19The Applicant must also provide evidence to establish he was present at the scene of the incident or came onto the scene of the incident while it unfolded or in the immediate aftermath. In the case of Dube v Penlon, [1994] O.J.No.1720, the Court stated at para. 142
It is necessary that the claimant see or hear the accident or event or its immediate aftermath and suffer nervous shock as a result. No liability is imposed for nervous shock suffered by someone who is simply told or informed of the accident”. Zuber J. went on to say at para.143 that “shock in the context of this cause of action involves the sudden appreciation by sight or sound of a horrifying event which violently agitates the mind.
20The Applicant must also establish he suffered psychiatric or psychological injury induced by the shock resulting from the violent occurrence. The CICB requires medical and/or psychological evidence to support a claim for mental or nervous shock. It is not every emotional upset or mental suffering that will provide the basis for this finding. In Duwyn v. Kaprielian, (1978) 1978 1271 (ON CA), 7 C.C.L.T 121, it was noted that the Applicant must suffer some recognized psychiatric illness. Justice Morden, J.A observed at 142:
The Law is relatively clear that the kind of nervous shock for which recovery may be had involves something more than general emotional upset.
21In the most recent case of Saadati v. Moorhead, [2017] 1 SCR 28, the Court noted that in order to meet the criteria an actual diagnosis is not required however there needs to be more than ordinary trauma. The Court notes the following:
To establish mental injury, claimants must show that the disturbance is serious and prolonged and rises above the ordinary annoyance, anxiety and fears that come with living in civil society. Expert evidence can assist in determining whether or not a mental injury has been shown but where a psychiatric diagnosis is unavailable it remains open to a trier of fact to find on other evidence adduced by the claimant that he or she has proven on a balance of probabilities the occurrence or mental injury.
22A letter was sent to the Applicant, advising that the CICB required psychological evidence to support his MNS claim. The CICB did not receive such evidence. At the oral hearing, the Applicant testified that he did not require counselling following the incident and that he had relied on family for support. He notes he was shocked at what happened and that this has made it difficult at family gathering especially knowing the deceased is not there with them. He feels angry, sad and at times overwhelmed with the information received. He states that even to this day he is trying to unravel how things happened and that receiving mixed messages has been difficult to deal with.
Analysis and Decision
23There is no question in this case that the deceased was a victim of a crime of violence within the meaning of section 5(a) of the CVCA. The issue for the CICB to decide is whether the Applicant himself is compensable as a victim under section 5(a) of the CVCA for a finding of mental or nervous shock and, if so, to determine an award of compensation to be made for pain and suffering.
24In assessing the “mental and nervous shock” portion of the claim, the CICB has considered this Application against the criteria for mental or nervous shock as outlined above.
25There is no doubt in this case that the incident was exceedingly violent. The Victim was said to have been assaulted by the Young Offender and then trapped in a room in a residence while fire had been set to the home, trapping her inside. She died as a result of smoke inhalation.
26In this case the Applicant was not present at the scene of the crime. His mother-in-law contacted his wife to advise them that the Victim was at the hospital and that they needed to attend but provided no details at this time. He testified that he attended the hospital shortly after and that the police provided some details however he is still unclear as to what exactly happened on that day.
27With respect to his relationship with the Victim, he noted that the two had known each other for 15 years as she was married to his wife’s brother. He testified that he shared a close relationship with her. Although they lived 40 minutes away from each other, they would visit often approximately 3 times a month and would call to keep in touch.
28The Applicant indicates that he saw the Victim at the hospital and observed her injuries and that as a result of the Victim’s death he experience sadness, anger and that he felt overwhelmed. There is certainly no question that the Applicant was at the hospital and that he observed the Victim’s injuries and that he may have experienced symptoms that would be expected in such circumstances. In addition, there is no doubt also that the Applicant shared a close relationship with the Victim.
29Having considered the documentary evidence presented as well as the oral testimony provided, the CICB finds that the Applicant has not met the criteria for “mental and nervous shock” for the following reasons:
There is no evidence that the Applicant sustained a significant diagnosed/recognized psychiatric/ psychological illness directly induced from the shock of coming upon the crime scene or in its immediate aftermath. While the Applicant clearly is upset, was angry and overwhelmed, this does not rise to the level of a recognized psychiatric illness. The evidence that was presented does not prove on a balance of probabilities that there was more than mere grief or sorry which is not a compensable injury for mental and nervous shock.
30Therefore, the CICB cannot find the Applicant to be a victim within the meaning of section 5 of the CVCA. Accordingly, this portion of the claim is denied.
Loss of Income
31With respect to the Applicant’s claim for income loss, the CICB notes that no details nor supporting documents were provided in the Application. The information submitted was in relation to his wife’s claim. In addition, no medical report confirming the disability period nor an employer’s report was submitted. At the oral hearing, the Applicant confirmed that he was not claiming loss of wages, that he did not miss work as a result of the incident and therefore did not incur any losses. The CICN hereby dismisses this claim.
32The CICB also considered the Applicant’s request for future funds for bereavement counselling as noted in the Application. The Applicant advised the CICB during the oral hearing that he was not requesting such funds as he did not find the need to attend for counselling at this time. He advised the CICB that he relies on his wife and family for support.
33Please accept the CICB’s deepest condolences for your loss.
Dated at Toronto on December 21, 2018
_______________________________
Louise Charette, Board Member