CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: M. Saleem Akhtar
Indexed as: (Re) 1801-00207
ORDER
Introduction
1The Applicant is seeking financial compensation from the Criminal Injuries Compensation Board (the “CICB”) in accordance with the Compensation for Victims of Crime Act, R.S.O. 1990, c. C.24, as amended (the “CVCA”). The Applicant is seeking compensation for pain and suffering resulting from psychological injuries that she claims she sustained due to witnessing her son having been injured by three Offenders on [date], 2016, in the Province of Ontario. All the three Offenders were convicted in this matter. The Applicant is also requesting incident-related future counselling costs and loss of income/wages to be approved.
Decision
2For the reasons set out below, the CICB approves the claim made by the Applicant in relation to the incident that caused her psychological injuries, as mentioned above, and awards the Applicant the sum of $5,000.00 as compensation for pain and suffering.
3The CICB also approves additional counselling funds up to $800.00 to be used within 36 months from the date of this Order, as further explained below.
4The CICB also awards $750.00 as a contribution towards loss of income/wages, as further explained below.
Issues
5In this case, a crime of violence has been committed against the Applicant’s son causing the latter both physical and emotional injuries within the meaning of and pursuant to subsection 5(a) of the CVCA. The Applicant’s son is the primary/principal victim (Victim) in this matter. The Applicant has not claimed any physical injuries as a result of the incident, and so the only claim she may bring forward is for the injury known as “mental or nervous shock” which is a legal term and not a medical condition.
6In this matter, the issues to be decided by the CICB are as follows:
a) Has the Applicant provided evidence to establish that the incident she witnessed or came upon the scene 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 Victim?
d) Did the Applicant suffer significant psychological or psychiatric injury as a result of the impact of 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.
7In simple words, to be compensable, the Applicant must establish that she suffered psychiatric or psychological injury induced by witnessing the assault by the Offenders or coming upon the scene in that she witnessed the Victim wounded/injured almost immediately after the happening of the incident. 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 victim or to attend court are not compensable.
Documentary Evidence
8In her written submissions to the CICB, the Applicant described the incident under the heading “Details of the Crime” as follows:
I am [Victim]'s mother and I was at work at the time of the incident. My son called me at approximately 6:59 p.m. and he did not tell me what had happened. He just kept repeating over and over 'come home I’m going to die'. One of the Offenders had gone back into my residence at which time I heard him over the phone saying there is so much blood what do I do? …I hung up on my son to call 911 and they told me they had a call already so I hung up and tried to call my son back. He did not answer. Finally, an officer answered and eventually told me my son had been shot twice with a shotgun. I didn’t know if he was alive or not…I went to the hospital and they didn’t think my son was going to survive…
9In her Application, the Applicant described her emotional injuries as follows:
I can’t explain what this has done to me emotionally. I still get anxiety when my phone rings and it is my son…Emotionally, my life has been destroyed. I suffer from anxiety, depression, PTSD. I have severe panic attacks. This crime against us has destroyed me financially and emotionally. I could never make you understand what my life is now like. I barely sleep. I’m always sick. I am very nervous, have panic attacks. I have flashbacks of hearing my son’s voice telling me he is going to die. I am now very emotional and I struggle to get through each day. I barely sleep as every noise I hear I am on alert. If I can’t reach my son on the phone, I have severe panic attacks…I have nightmares…the [day] of the month is always hard for me…I never used to be angry or emotional. Now, I can hardly get through movies…I was very sociable with and without my son and now I don’t do much. Missing time from work for court, surgeries and such has put a huge financial strain on me…I feel I’m living someone else’s life…I don’t like big crowds anymore. I used to attend fairs, many events but again that has changed. I miss watching my son play his sports that alone gave him enjoyment and that is gone…The panic attacks I have are debilitating and the nightmares I have are horrible. I have many nightmares when my son dies and I wake up covered in sweat shaking and crying. I would give anything to go back to living the life we had. Before, it was simple and fun and now life seems hard. It’s a struggle to get through each day. I will never be able to delete the recording of my son or delete the images of his injuries or even the scars both physical and emotional that my son and I gained from this event. I used to be full of life. Now, I just feel empty.
Police report and police witness testimony
10The police report, on file, as well as police witness’s testimony at the hearing corroborates the Applicant’s version of the incident. However, the report adds that there had occurred another incident between the Victim and one of the Offenders on [date] when the former was punched in the face while at the mall. In response to a question from the CICB, the police witness advised that no drugs were involved in this matter and that the Victim was an innocent victim. After due investigation, all three Offenders were charged and later convicted
Oral Hearing
11In her sworn oral testimony before the CICB on June 12, 2018, the Applicant told that her son phoned her at 6:59 p.m. begging her to come home stating he would die, but he did not disclose what had happened. Later, when the police arrived, they attended her phone and advised her that her son had been shot twice with a shotgun. She saw her son at the [name] Hospital at 7:30 p.m. He underwent a total of seven surgeries. It was traumatizing seeing her son wounded. She added that five persons were arrested in this matter, though, three were convicted.
12In response to a question from the CICB, the Applicant told that the Offenders also robbed her off her jewelry, laptop and other valuable items worth thousands of dollars.
13The Applicant confirmed that she did not sustain physical injury. However, in terms of the emotional impact, the Applicant stated that she was scared and experienced anxiety, depression, nightmares and sleep disturbance. Describing her nightmares, she told that sometimes she would see in her dream that her son was actually dying. She became hyper-vigilant and was diagnosed PTSD. Her son’s residual scars remind her of the tragic incident almost daily. Her life has totally altered and fallen apart. She is afraid of answering the phone call from her son. Similarly, if her son wouldn’t pick up the phone quickly, she goes panic.
14In response to a question from the CICB, the Applicant told that she attended 12 counselling sessions through her work under Employment Assistance Program (EAP) and one session in [date] 2018. She added she would continue attending counselling sessions by using funds approved for counselling by the CICB in the amount of $1,000.00 under section 14 of the CVCA. She requested to approve more funds for counselling in order for her to achieve optimal results from counselling to address her emotional issues resulting from the incident.
15Responding to another question, the Applicant told that she did not submit therapy reports from EAP counsellor because EAP counsellors do not provide reports, as per their policy. As regards the new counsellor, she had only one session with her, therefore, she thought that such a report could not depict true picture of what she was going through.
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 Victim (Applicant’s only son) met with a degree of violent assault on [date], 2016. The Applicant’s written submissions and her oral testimony as well as the police report and police witness’s testimony are consistent in that the Applicant’s son was shot at by the Offenders, and that the Applicant, after learning about the tragic incident from her son, and, then, from the police, and, then, seeing her son in the hospital with serious life-threatening injuries, she 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 she 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 CVCA and that she sustained psychological injuries resulting from the incident.
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 her life and the quality of her life have changed. She feels scared, anxious and petrified. She experiences nightmares and has been diagnosed with symptoms of depression and PTSD.
18In order to attend to the emotional injuries caused by the mental or nervous shock that the Applicant claims she sustained as a result of the incident in which her son was seriously injured, she attended 12 counselling sessions through her work using Employee Assistance Program (EAP) and is still continuing counselling. The CICB accepts the Applicant’s account of the emotional impact on her, as induced by the mental or nervous shock.
19In support of her 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 loved one, such as is the case in this matter.
21The Applicant’s oral testimony was inherently consistent with her written submissions made in her application. She was straight forward and honest in responding to questions from the CICB. She was not evasive in her responses. Her demeanor was that of a reliable and credible person. Her testimony was convincing, credible and reliable. Hence, the CICB accepts the Applicant’s account of the incident as well as that of her emotional/psychological injuries and their resultant impact on her, as described and claimed by her.
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 CVCA. 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 and that of the police witness, the CICB finds the Applicant not only a victim within the meaning of and pursuant to subsection 5(a) of the CVCA but also accepts that she sustained emotional injuries, as claimed by her in her 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 CVCA is not intended to make a victim for compensation 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 $5,000.00 as compensation for pain and suffering.
Expenses
28The CICB has considered the Applicant’s claim in respect to ambulance costs in the amount of $50.00. 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.
29The CICB has considered the Applicant’s claims in the amount of $5,000.00 in respect to lost items and moving costs. The CICB generally awards compensation only to cover expenses related to treatment of the injuries sustained such as hospital, medication or therapy expenses and not for expenses related to personal items/property, moving costs and financial debts. Having found no compelling reasons to deviate from its usual practice in this instance, the CICB declines to award compensation for the Applicant’s claims in respect to lost items and moving costs.
Future Counselling
30Based on the Applicant’s stated intention to continue counselling therapy for some more time in the near future, the CICB authorizes additional funds up to $800.00 (exclusive of any applicable taxes). These funds are in addition to $1,000.00 already approved under section 14 of the CVCA. The counselling costs would be paid directly to a qualified treatment provider upon receipt of a Curriculum Vita outlining the credentials of the service provider (unless the CICB already has a copy on file). These sessions can only be accessed when the therapy sessions are not covered by other sources, such as the Applicant’s place of employment or insurance benefits or public funds. Therapy 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. 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. The CICB may also consider 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 amount described above.
Loss of Income
31With respect to the Applicant’s claim for income loss in the amount of $9,979.20, 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 her claim for income loss in the amount of $9,979.20 and the claim in that regard is hereby denied. However, the CICB understands that it would be difficult for a mother to return to work the day after the incident in which her son suffered life- threatening injuries, and even for a few more days during her son’s convalescence period. The Applicant told that she had not yet accumulated enough days to qualify for Employment Insurance or paid sick leave. The CICB accepts that statement and awards an amount of $750.00 (for 15 days at the CICB’s rate of $50.00 per day) as a contribution towards loss of income/wages.
Award
32The CICB now orders payment as follows:
Section 7 (1) (a) Therapy (Section 14) $1,000.00
Section 7 (1) (a) future counselling up to $800.00
Section 7 (1) (b) loss of income / wages $750.00
Section 7 (1) (d) Pain and Suffering $5,000.00
TOTAL AWARD: $7,550.00
Less: S.14 award already paid/authorized -$1,000.00
Less: Preauthorized future treatment costs -$800.00
TOTAL CURRENT AWARD: $5,750.00
33The 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 CVCA.
34The CICB orders that the following sums be paid forthwith to:
The Applicant $5,750.00
Dated in Toronto this 12th day of July, 2018.
M. Saleem Akhtar, Member