Criminal Injuries Compensation Board
Adjudicator: Louise Charette
Indexed as: (Re) 1706-01843
ORDER
Introduction
1The CICB was terribly sorry to learn of the tragic and violent death of your brother [name], who was murdered on [date] 2015. In this case, two Alleged Offenders were believed to be responsible for his death. One Alleged Offender was charged with second degree murder and was found not guilty after a jury trial and the other died prior to prosecution.
2You submitted an Application and are seeking financial compensation from the Criminal Injuries Compensation Board (CICB) in accordance with the Compensation for Victims of Crime Act, R.S.O. 1990, c. C.24, as amended (the “CVCA”). In your Application you indicated that you are seeking compensation for: bereavement counselling, loss of income and expenses related to the attendance at the criminal trial in connection with your brother’s murder.
Issues
3Where a death has occurred as a result of a crime of violence, family members of the victim may be eligible for certain compensation under the CVCA. These are as follows:
a) Expenses related to funeral and burial services;
b) Loss of income the victim had provided to support a dependant;
c) Bereavement counselling to assist in coping with grief symptoms.
Decision
4The CICB awards the Applicant the sum of $2,000 for bereavement counselling.
5The CICB denies the request for loss of income, past counselling expenses as well as expenses related to attendance at the criminal trial for the reasons set out below.
Hearing
6The hearing was conducted in writing on the basis of the materials contained in the Applicant’s file.
Documentary Evidence
7The CICB received the following documents with respect to this claim: the Application, submissions, media reports, police synopsis, and letters from the psychotherapist. The CICB also reviewed the following expense claims made out to Ms. [name]; [name] funeral home statement of account, [name] Cemetery invoice, [name] Monument Works receipt, as well as an accommodation receipt for the [name] Guest house. All past counselling receipts provided are also made out to Ms. [name] as well.
Police Synopsis
8The [place] police synopsis indicates that on [date], 2015 the Victim forgot his cell phone in the backseat of a taxi. On [date], he used an app to help retrieve his phone which led him to the Alleged Offenders’ location. At that time the Victim was accompanied by his sister. It was noted she approached the vehicle as it exited a MacDonald’s drive-thru and asked the men if they had found a phone. The driver answered no however when she phoned the Victim’s cell phone the front passenger reached behind the back seat and pulled out a phone that was ringing. She asked for the phone back however the Alleged Offenders told her to prove it was theirs. She then reached inside the vehicle to enter in the lock code to satisfy them but just as she unlocked the phone the driver stepped on the gas to accelerate. As a result, the car lurched forward with her still leaning in the side window which threw her to the ground. The police synopsis indicates that the Victim then grabbed on to the moving vehicle; he reached inside and hugged on to the driver’s side door frame and pulled his feet off the ground. The car drove out of the parking lot with the Victim hanging on. The Victim’s sister called 911. Witnesses advised police that the Victim was dragged at an approximate speed of 70-80 kilometers. Police indicate that citizens heard gunshots behind the Shoppers and when they arrived the Victim was deceased.
Therapy letter
9The CICB also reviewed letters provided by the Applicant’s psychotherapist. The [date], 2018 letter confirms she received a referral from the Victim Quick Response Program as a result of [name]’s death. She notes she met with the family on three different occasions and then also met with the Applicant individually on three occasions.
10With respect to the Applicant’s emotional state, she writes
[Applicant] was coping by not communicating with others and spending time alone in his room while not at work. It was important to him that he not be perceived as broken and he was concerned about other’s opinion as to how he dealt with tragedy.
11In a letter to Sunlife Financial dated [date], 2015 she writes that he has been unable to work since his brother’s death and he
(…) has had difficulty eating and sleeping, he is unable to focus or concentrate and his mind wanders. He is experiencing mood swings and is irritable. He expressed concerns about being able to function properly at work.
12The CICB also reviewed a letter dated [date], 2015 addressed to the employer. The psychotherapist writes that the Applicant is unable to work given the impact and violent death of his younger brother. However, he was addressing his stress symptoms and developing coping mechanisms in order to resume work.
13The psychotherapist indicates that she has had no further involvement with any member of the family however notes that further psychological support may be necessary to assist each of them.
Analysis and Decision
14The fact there is no conviction in this case does not preclude the CICB from awarding compensation. Section 16(1) of the CVCA provides that compensation may be awarded whether or not a person has been prosecuted or convicted of the offence giving rise to the injury or death. The CICB finds on a balance of probabilities that [brother] was a victim of a crime of violence, and therefore, a Victim within the meaning of section 5(a) of the CVCA.
Loss of Income
15With respect to the Applicant’s claim for income loss, the CICB notes that the Applicant is not a direct victim and therefore the wage loss does not arise from the injury to him. In addition, he does not meet the criteria for an MNS award. Having found no compelling reasons to deviate from its usual practice in this instance, the CICB finds that the Applicant has not established his claim for income loss and the claim in that regard is hereby denied. It should be noted that no details were provided with respect to this claim aside from the fact that the Applicant was employed in the waste management field and that he was not able to resume employment until sometime in the fall of 2015.
Other expenses
16The CICB has also considered the Applicant’s claim in relation to the costs associated with travelling and accommodation to attend the criminal trial. In accordance with CICB practice, the CICB generally awards compensation only to cover expenses related to treatment of the injuries sustained (i.e. hospital, medication or therapy expenses) and not for expenses related for accommodations to attend court matters. 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 the above costs. It should also be noted that the receipt provided was in Ms. [name]’s name.
17The CICB also considered the Applicant’s request for compensation for bereavement counselling however all receipts submitted to the CICB were made out to Ms. [name].
18In his submissions, counsel refers to section 7(2) of the CVCA indicating the CICB may, in addition to the compensation referred to in section 7(1) award compensation for any other damage resulting from the injury for which damages may be recovered at common law. Section 7(2) indicates:
7(2) where the injury to a person occurred in the circumstances mentioned in clause 5(b) or (c), the Board may, in addition to the compensation referred to in subsection (1), award compensation to the injured person for any other damage resulting from the injury for which damages may be recovered at common law.
19In this case the Applicant’s brother is the person who was “injured or killed” under section 5. The CICB does not consider this section to mean that the family/dependants are also compensable under this section as they are actually not the “injured person”.
Maximum lump sum award of $25,000.00
20The CICB awarded the maximum allowable lump sum payment in this case of $25,000.00 for funeral expenses and bereavement counselling between three Applicants. Section 19(1)(a) of the CVCA states:
19(1) The amount awarded by the Board to be paid in respect of the injury or death of one Victim shall not exceed,
(a) in the case of lump sum payments, $25,000.00
21Since the CICB has issued the maximum allowable lump sum award, it cannot consider any further claims for compensation with respect to this incident.
Section 17(3) – Monies received from Other Sources
22The evidence shows that the Applicant has received monies in the form of life insurance proceeds in the amount of $22,500.00. The CICB is obligated to take these monies into account in accordance with section 17(3) of the CVCA, which reads as follows:
17(3) In assessing compensation, the Board shall take into consideration any benefit, compensation or indemnity paid or payable to the Applicant from any source other than general welfare assistance or family benefits.
23In this case, the award is for bereavement counselling therefore the CICB will not deduct this amount.
Section 26(5.1) – right to reimbursement
24Should the Applicant be awarded compensation as a result of a civil action, the Applicant must notify the CICB immediately since the CICB is entitled to be reimbursed from those funds for any amount of compensation it has awarded to the Applicant, pursuant to section 26(5.1) that states:
26 (5.1) The Board is entitled to be reimbursed, out of any amount recovered by the Applicant from the offender or any other party, for the amount of compensation awarded to the Applicant.
25The CICB understands the emotional impact that the violent death of a relative can have on surviving family members. To assist you in addressing the grief and distress associated with your loss, the CICB authorizes up to $2,000.00 (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.
26Please accept the CICB’s deepest condolences for your loss.
Award
27The CICB orders payment as follows:
Subsection 7(1)(a) Future Pre-Authorized Expense $2,000.00
TOTAL AWARD (AND COSTS) $2,000.00
Less: Preauthorized treatment costs -$2,000.00
TOTAL CURRENT AWARD $0
Dated in Toronto on this 16th day of August, 2018.
Louise Charette, Member