CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Christie Jefferson, Veda Rangan Date: May 28, 2018 Indexed as: (Re) 1401-94648
SECTION 10 REVIEW
ORDER
Introduction
1The Applicant has requested a review of the Order issued January 5, 2018 in accordance with section 10(1) of the Compensation for Victims of Crime Act, RSO 1990 c.24, as amended, the “Act”.
2The relevant portions of section 10 read as follows:
10 (1) Where an application is heard by a single member of the Board under section 9, the applicant or the Minister may, within fifteen days after service of the decision of the member, require a hearing and review by the Board and the Board shall fix a time and place for the hearing and shall at least ten days before the day fixed cause notice thereof to be served upon the parties to the proceeding.
(3) The hearing shall be conducted and the jurisdiction of the Board shall be exercised by at least two members of the Board and the member whose decision is being reviewed shall not sit on the review.
(4) After a hearing and review by the Board under this section, the Board shall make its order in accordance with this Act and its order supersedes the order of a single member made under section 9 that is the subject of the hearing and review.
3Rule 19.2 of CICB’s Rules of Procedure states:
An applicant may request a review of the decision of a single member on the grounds that the decision contains a serious error of law or an unreasonable exercise of discretion.
Issue
4The CICB received an email on February 16, 2018 from the Applicant’s legal representative on behalf of the Applicant requesting a review of a section 25 Variation Order made by one Member, dated January 5, 2018, in which the CICB denied the variation request for additional pain and suffering based on the fact that he suffered from mental nervous shock (“MNS”).
5The Applicant is seeking a review of the denial of additional pain and suffering. He is also requesting that the CICB order compensation for the loss of income due to having to take a ten day unpaid leave as a result of his mental state as a result of the crime of violence. To note, the request for compensation for loss income was not raised or addressed in the section 25 Order. The email provides details of the loss of wages, documentation for the pay periods in November 2017, the attendance record for the same period and a letter from his employer confirm the applicant was absent for 7 days in November from work and this was without pay. The email also asked the Board to compensate the claimant for 10 days of loss income between December 1, 2017 and February 20, 2018 as the claimant was unable to work due to “his unstable state of mind and fatigue due to sleepless nights;” This however is not supported with a letter from the employer or other documentation.
6The CICB must determine whether there has been a serious error of law or an unreasonable exercise of discretion in its decision on January 5, 2018.
Decision
Pain and Suffering award for Mental or Nervous Shock (MNS)
7The Applicant’s initial Application sought compensation for pain and suffering for being a direct victim of a crime of violence, for having been shot, but also compensation for the MNS he suffered as a result of witnessing the fatal shooting of his childhood friend at the same event. The CICB awarded pain and suffering to the Applicant as a result of being a shooting victim in their Order of July 7, 2014 but did not address the MNS portion of the Application. Consequently, the Applicant filed a section 25 Variation request to increase the pain and suffering award in light of the MNS portion that was not addressed.
8The section 25 request for an increase in compensation for pain and suffering due to MNS included the following documentation:
- The medical report, dated December 22, 2017, from the Applicant’s family physician, indicated that the incident when the applicant was shot also involved his friend being murdered. Her doctor continues and indicates that the combination of almost being killed as well as witnessing his friend death caused significant trauma symptoms. The re-trial of the accused in that case sometime in 2017-2018 was terrifying for the Applicant, and brought back flashbacks, intrusive thoughts, and extreme anxiety.
- A letter was submitted by the applicant’s worker with Victim Witness Assistant Programme, dated November 20, 2017, notes that the new trial with respect to the murder of the applicant’s friend and the almost fatal shooting of the applicant increased his mental and nervous shock and caused new trauma to him. The applicant was living in fear while awaiting the outcome of the trial. She notes the applicant lost one of his best friends in the incident. She asserts the applicant should have an increased pain and suffering award as a result.
9The section 25 Variation Order considered the physical and emotional injuries the Applicant sustained as a direct victim and determined, under those circumstances, that the pain and suffering award was appropriate. This Panel concurs with this decision with respect to that portion of his claim. However, there is no reference in the section 25 Variation Order to the request for an increase in the Applicant’s pain and suffering award for the MNS part of his Application.
10Given that the CICB did not consider the MNS part of the Application in the Variation Order (and in the original Order), the CICB grants the review as there has been both a serious error in law and an improper exercise of discretion and will determine whether compensation can be awarded for MNS.
11MNS is a legal term, rather than a medical diagnosis. The 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, is as follows:
…the following elements of the cause of action for nervous shock have been established:
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;
proximity factors inform the foreseeability analysis for claims of psychiatric injury where there is no physical injury;
the relevant proximity factors are the relational proximity (the closeness of the relationship between the claimant and the victim of the defendant’s conduct), locational proximity (being at the scene of a shocking event and observing it or observing its immediate aftermath), and temporal proximity (the relation between the time of the event and the onset of the psychiatric illness);
the claim must be for actual psychiatric injury caused by the actionable conduct of the defendant;
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;
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.
12The evidence that was before the CICB for the original and variation hearings indicates, and the CICB is satisfied, that the Applicant was present when his childhood friend was mortally shot in front of him, and that there was evidence at the time of the section 25 hearing that witnessing this close friend’s murder caused significant psychological and psychiatric trauma including a diagnosis of post-traumatic stress disorder and extreme anxiety. Certainly there would be a duty of care and it would be foreseeable that there is a risk of psychiatric harm by shooting others. Additionally, the CICB is satisfied that the Applicant has proved the existence of locational and temporal proximity. Accordingly, we are awarding a further $8,000.00 in pain and suffering to the Applicant with respect to mental and nervous shock. This additional award brings the total for pain and suffering to $18,000.00.
The Claim for Loss of Income
13In the hearing for the section 10 Review, the Applicant submitted that the CICB should award compensation for the loss of income from having to take 7 days of unpaid leave from work from November 1-15, 2017.
14Upon reviewing the matter, there was evidence that was put before the CICB at the section 10 hearing that was new evidence which would likely have changed the amount of compensation awarded and was not reasonably available at the time the order was made and at the very least, there had been a change in circumstances given the re-trial of the accused in the murder trial. Consequently, the CICB grants the review request on the issue of income loss as there has been a serious error in law and there was an improper exercise of discretion.
15The following new documentation was submitted for the section 25 review in relation to the loss of income claim:
- In the letter by the Doctor referenced above, the Family Physician confirms that the Applicant had to take unpaid leave from work from the period November 1-15, 2017 on the Doctor’s advice due to his extreme anxiety after being notified of the retrial of the two accused of shooting the Applicant and murdering his friend.
- In the letter from the Applicant’s worker noted above, also referred to the traumatizing effect of having to testify once again, causing the Applicant to lose sleep, have nightmares, constant headaches and extreme stress. These trauma symptoms were so severe that the Family Physician required the Applicant to take unpaid leave from work for two weeks.
16The additional material submitted for this review, as noted above, provides further support for the loss of income claim.
17Given this error, this Panel is awarding $350.00 for the 7 days of unpaid leave calculated at the CICB’s usual award of $50 per day for income loss.
18The Panel is reaffirming the section 25 extension of the utilization period of the original preauthorized therapy to January 5, 2021.
Award
19The CICB now orders payment as follows:
Section 7 (1) (a) Future Preauthorized counselling $ 2,400.00 Section 7 (1) (b) Income Loss (Applicant) $ 350.00 Section 7 (1) (d) Pain and Suffering $18,000.00
TOTAL AWARD $20,750.00
Less: Preauthorized future costs $ 2,400.00 Less: Award already paid $10,000.00
TOTAL CURRENT AWARD $ 8,350.00
20The 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
21The following will be paid immediately to:
The Applicant $8,350.00
DATED at Toronto this 28th day of May, 2018.
______________________________ Christie Jefferson, Vice Chair
______________________________ Veda Rangan, Member