CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Louise Charette
Indexed as: (Re) 1706-01840
ORDER
Introduction
1The CICB was terribly sorry to learn of the tragic and violent death of your son, [name], who was murdered on [date], 2015. Two Alleged Offenders were identified in this case. One Alleged Offender was found not guilty after a jury trial and the second Alleged Offender 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, RSO 1990, c. C.24, as amended (the “CVCA”). In your Application you indicated that you are seeking compensation for: funeral expenses, bereavement counselling, loss of income and expenses related to the attendance at the criminal trial in connection with the death of your son.
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 dependent;
c) Bereavement counselling to assist in coping with grief symptoms.
Decision
4The CICB awards the Applicant the sum of $8,114.90 for funeral expenses and $2,400 for bereavement counselling.
5The CICB denies the request for loss of income, past bereavement 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, [place] police synopsis, and letters from the psychotherapist. The CICB also reviewed the following expense claims made out to [Name]; funeral home statement of account, [name] Cemetery invoice, [company] receipt, as well as an accommodation receipt for the [place] Guest house. All past counselling receipts provided are also made out to [Name].
Police Synopsis
8The [place] police synopsis indicates that on [date], 2015 the Victim used an app to help retrieve his cell phone. His search led him and his sister to the Alleged Offenders. Police information indicates that once at the location, the Victim’s sister approached the vehicle as it exited a McDonald’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 arrive the Victim was deceased.
Therapy letter
9The CICB also reviewed two letters provided by a psychotherapist in relation to the Applicant. She notes that she received a referral from the Victim Quick Response Program as a result of [name]’s death and that she has met with the family on three different occasions and then also met with family members individually.
10With respect to the Applicant’s emotional state, she writes “he was grappling at the suddenness and violence of the death of his son”. She also notes that the Applicant tried “not to show his emotions” and worries about “breaking down”, “feels vulnerable and concerned about being exploited”. She adds that he continues to be “disoriented and overwhelmed by the reality of what has happened to his son and family and with the loss of future opportunities for [name]”. Although there has been some improvement, the Applicant still experiences “periods of despondency and issues with anger and emotional outburst”.
11The 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
12The 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 [Victim] was a victim of a crime of violence, and therefore, a victim within the meaning of section 5(a) of the CVCA.
Funeral and burial expenses
13The CICB is awarding the Applicant the sum of $8,114.90 for funeral and burial related expenses. Additional information provided by Counsel’s office indicates that the Applicant’s out of pocket expenses total $25,004.75. However, it was noted in the Application that he contributed $8,114.90 towards these costs. All receipts provided to the CICB were in Ms. [name]’s name but the CICB accepted, as submitted by the representative, that these expenses were shared.
Loss of Income
14With respect to the claim for income loss, the CICB notes the Applicant is not a direct victim in this case and therefore the wage loss does not arise from the injury on 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 also be noted that no details in reference to this claim was provided.
Other expenses
15The 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 claim in respect to the above costs. It should also be noted that the receipt provided to the CICB for [place] Guest House was in Ms. [name]’s name.
16The 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].
17In 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.
18In this case the Applicant’s son 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 Allowable Lump Sum
19The 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
20Since the CICB has issued the maximum allowable lump sum award, it cannot consider any further claims for compensation in respect of this incident.
Section 17(3) – Monies received from Other Sources
21The evidence shows that the Applicant has received monies in the form of life insurance proceeds in the amount of $2,500.00. 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.
22Since the monies already received by the Applicant do not exceed the amount of compensation as assessed by this Panel, the CICB will not deduct this amount in the award.
Section 26(5.1) – right to reimbursement
23Should 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.
24The 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 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.
25Please accept the CICB’s deepest condolences for your loss.
Award
26The CICB orders payment as follows:
Subsection 7(1)(a) Expenses $ 8,114.90
Subsection 7(1)(a) Future Pre-Authorized Expense $ 2,400.00
TOTAL AWARD (AND COSTS) $10,514.90
Less: Preauthorized treatment costs $ 2,400.00
TOTAL CURRENT AWARD $ 8,114.90
Payment
27THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $8,114.90
DATED at Toronto on this 16th day of August, 2018.
Louise Charette, Member