(Re) 1706-01841, 2018 ONCICB 67

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Louise Charette

Date: August 27, 2018

Indexed as: (Re) 1706-01841

ORDER

Introduction

1The CICB was terribly sorry to learn of the tragic and violent death of [her brother], who was murdered on [date]. In this case, two Alleged Offenders were identified. One Alleged Offender was charged with second degree murder but was found not guilty after a jury trial and the other died prior to prosecution.

2The Applicant submitted an Application and is 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”).

3The Applicant claims compensation under s.5(a) of the CVCA on the basis that she suffered “mental and nervous shock” as a result of the incident of violence she witnessed.

4The Applicant is also seeking compensation for pain and suffering as a result of being a direct victim of a physical assault which occurred on the same date and for which she sustained injuries.

5In her Application she indicates that she is also seeking compensation for:

a. Kilometers travelled to treatment. b. Medical/treatment expenses c. Loss of wages d. Counselling expenses e. Expenses related to the attendance at the criminal trial in connection with her brother’s murder.

Issues

6In deciding this Application the CICB must consider:

a. Did the Applicant experience “mental or nervous shock” and, if so, the appropriate award of compensation. b. Was the Applicant a direct victim of a crime of violence? The CICB must determine, on a balance of probabilities, whether a crime of violence occurred against the Applicant, and if so, if she sustained injuries. c. Did the Applicant incur expenses as a result of the crime of violence? To determine whether the Applicant is entitled to compensation for expenses, she must provide reliable evidence to support her claims.

Decision

7The CICB awards the Applicant the sum of $2,400 for counselling.

8The CICB awards the Applicant the sum of $4,000.00 for pain and suffering as a result of being a direct victim of an assault.

9The CICB awards the Applicant the sum of $9,000.00 for mental and nervous shock.

10The CICB denies the request for loss of income, past counselling expenses as well as treatment/medical expenses, travel to treatment expenses and expenses related to attendance at the criminal trial for the reasons set out below.

Hearing

11The hearing was conducted in writing on the basis of the materials contained in the Applicant’s file.

Documentary Evidence

12The 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] 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.

Incident

13The [city] police synopsis indicates that on [date], 2015 the [brother] , used an app to help retrieve his cell phone which he had forgotten in a taxi the night before. His search led him and the Applicant to the Alleged Offenders. Once at the location, the Applicant 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 brother’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 she needed to prove ownership.

14Police information indicates that the Applicant then reached inside the vehicle to enter the lock code on the phone to satisfy the Alleged Offenders while the passenger held on to the device. As she was unlocking the phone, the driver stepped on the gas to accelerate and the car lurched forward with her still leaning in the side window. As a result, she was hit by the moving vehicle and was then thrown to the ground.

15In the Application submitted to the CICB, the Applicant notes that when she reached into the vehicle to attempt to operate the phone one of the Alleged Offenders grabbed her and partially pulled her in and as a result, her brother intervened. She notes that he was still partially inside the vehicle when it suddenly accelerated at a high rate of speed.

16The police synopsis indicates that the brother 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 him hanging on. The Applicant, seeing her brother clinging to the vehicle as it sped away, called 911 and then ran up the block to wait for police. Witnesses advised police that the brother was dragged at an approximate speed of 70-80 kilometers. Police indicate that citizens heard gunshots behind the Shoppers and when they arrived the brother was deceased. When police arrived to the Applicant’s location, she showed the officer her phone which was still tracking the brother’s cell phone.

Therapy letter

17The CICB also reviewed letters provided by the Applicant’s psychotherapist dated [date] 2018. She confirms she received a referral from the Victim Quick Response Program as a result of [brother]’s death. She notes she met with the family on three different occasions at [mother]'s home and then also met with the Applicant individually on four different occasions.

18With respect to the Applicant’s emotional state, she writes:

(…) she continues to experience significant difficulties sleeping, with awakenings during the night. She is also still quite emotionally labile and breaks down emotionally. She also finds herself overly anxious, particularly at night when she is alone or when meeting new people. As a result, she avoids socializing, being at home alone and going outside at night. She also continued to experience flashbacks and emotional breakdowns lasting approximately 30 minutes”.

19With respect to the Applicant’s prognosis, the psychotherapist made the following comments:

(…) she has coped with the horrific circumstances of her little brother’s death by disengaging and denying the impact. She has steeled herself for protection. Her physical and psychological health is vulnerable to stress and there has been a significant history of cumulative trauma. [Applicant] is unable to allow herself to begin trauma, cognitive and emotional processing or the mourning process. It is sincerely hoped that she will be provided the resources to access psychotherapy when, in the future, she is ready and able.

20The psychotherapist writes that homicide can evoke intense emotions that can cause the bereaved to feel helpless and out of control. She indicates:

(…) they may be the agonizing preoccupation and replaying of the death scenario and the deceased’s suffering. Hyper vigilance is not uncommon and concern for self, others and the future are magnified. The impact of media and the justice system can complicate and prolong attempts to process the trauma, the loss and the ability to regain effectively functioning.

She adds:

(…) the members of this family were also vulnerable to post traumatic stress having witnessed, directly experiencing and/or learning about the violence and death of their son and brother. Individually they have reported symptoms of intrusive and distressing memories, avoidance efforts, alterations in cognition and mood and arousal and reactivity.

21The 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.

Mental and Nervous shock

22Under 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.

23An 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, that they shared a close relationship to the victim, 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.

24In this case the Applicant witnessed the beginning and the end result of the violent crime of seeing her brother being pulled into the vehicle and then dragged at a high speed. Shortly after losing sight of him, she heard gunshots and she also observed the ambulance and police vehicles arriving at the location of her brother’s death.

25The Applicant must also establish she 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. In the most recent case of Saadati v. Moorhead, 2017 SCC 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.

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.

26The Applicant writes that as a result of the crime of violence she suffers from PTSD, emotional/psychological trauma, sleep disturbances, recurring nightmares, flashbacks of the incident and difficulties concentrating.

27In assessing this portion of the claim, I also considered the psychotherapist’s comments. She notes that the Applicant experienced psychological injury resulting from witnessing the crime of violence. She writes that the Applicant has and continues to experience trauma symptoms including significant difficulties sleeping, break downs, anxiety, social isolation, flashbacks, fear, intrusive thoughts, distressing memories, avoidance efforts and hyper vigilance. The therapist also notes that witnesses to violence are vulnerable to PTSD.

Analysis and Decision

28There is no question in this case that the Applicant’s brother 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 herself 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.

29Having considered the documentary evidence before it and having considered the Applicant’s circumstances against the legal criteria for “mental or nervous shock” as established by the Courts, the CICB finds that the Applicant meets the requirements and accordingly finds her to be compensable under section 5(a) of the CVCA on that basis.

30In assessing compensation, the CICB has taken the following facts and circumstances into consideration. The Applicant was on the scene of the crime where she observed a horrific degree of violence inflicted on her brother. As detailed in her written submissions to the CICB and in the evidence on file, the Applicant has experienced and continues to experience trauma symptoms. In considering all relevant information in this case, the CICB orders payment to the Applicant in the amount of $9,000.00 for pain and suffering.

31The Applicant is also being considered for compensation as a direct victim of an assault arising from the same incident. The 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 the Applicant is a victim within the meaning of section 5 (a) of the CVCA.

32In assessing this claim, the CICB considered that the Applicant sustained minor physical injuries as a result of being a direct victim of the assault. The police synopsis indicates that she was hit by the moving vehicle and then thrown to the ground causing abrasions on her left palm and buttocks. The psychotherapist noted that the Applicant experienced psychological injury resulting from witnessing the crime of violence. In consideration of the foregoing, the CICB orders payment to the Applicant in the amount of $4,000.00 for pain and suffering.

Loss of Income

33With respect to the Applicant’s claim for income loss, the CICB notes that no details nor supporting documents were provided. No medical report confirming the disability period nor an employer’s report was submitted.

34A letter dated [date], 2017 was sent noting that, as it was unclear if the Applicant was making a claim for loss of employment earnings, she should contact the CICB to advise if she wanted to be considered for such. As the CICB did not receive the supporting documentary evidence required, the claim is denied.

Travel to treatment

35The Applicant’s claim with respect to travel to treatment expenses is also denied as no additional details were provided. The psychotherapist indicates that she met with the family on three occasions at the mother’s home and then, she met with the Applicant for four additional individual sessions. The Applicant was asked to submit a letter from the treatment provider verifying dates of treatment and the distance she travelled.

Other expenses

36The 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.

37The CICB also considered the Applicant’s request for compensation for bereavement counselling however as all receipts submitted to the CICB were made out to Ms. [name], this part of the claim is also denied.

38With respect to the claim for medical/treatment expenses, the CICB was not provided with receipts or documentation to support it therefore, this claim is also denied.

Section 17(3) – Monies received from Other Sources

39The 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.

40In this case, the Applicant is also being compensated for mental and nervous shock and for being a direct victim of an assault. In light of those facts, the CICB will not deduct any amount from her award.

Section 26(5.1) – right to reimbursement

41Should 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.

42The CICB authorizes up to $2,400.00 (exclusive of any applicable taxes) for future counselling expenses to be paid directly to a qualified treatment provider upon receipt of a Curriculum Vitae outlining the credentials of the service provider. 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. 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. 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 $2,400.00 amount described above.

43The CICB recognizes that no amount of money can adequately compensate victims for the injustice they have suffered but also finds the amount of the awards to be reasonable within the context of the CVCA.

44Please accept the CICB’s deepest condolences for your loss.

Award

45The CICB orders payment as follows:

Section 7(1)(d) Pain and Suffering; mental nervous shock $9,000.00 Section 7(1)(d) Pain and suffering; as a direct victim of an assault $4,000.00 Section 7(1)(a) Future Pre-Authorized Expense $2,400.00

TOTAL AWARD (AND COSTS) $15,400.00 Less: Preauthorized treatment costs -$2,400.00 TOTAL CURRENT AWARD $13,000.00

Payment

46The CICB orders that the following sums be paid forthwith to:

The Applicant $13,000.00