(Re) 1803-00946, 2019 ONCICB 10

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Pamela Arnott Louise Charette

Hearing Date: January 29, 2019

Indexed as: (Re) 1803-00946

DECISION

INTRODUCTION

1The Applicant applied to the Criminal Injuries Compensation Board (CICB) seeking compensation for pain and suffering for injuries resulting from physical assaults that occurred on […]. She is also seeking pain and suffering for the condition known as mental and nervous shock as a result of seeing her family members injured in the same incident. The incident was reported to the police and resulted in charges.

DECISION

2In accordance with the Compensation for Victims of Crime Act, RSO 1990, c C24, as amended (CVCA), the CICB grants the Application. The Board approves the claim in part and awards the Applicant the sum of $1,600.00. Our reasons for this Decision follow below.

HEARING

3The Applicant appeared in person and provided oral testimony and submissions.

4A police officer with the Ottawa Police Services (‘police officer’) appeared as a witness. The police officer was the lead investigator in this incident.

5An Arabic interpreter was present to interpret for the Applicant and her husband.

Evidence

Documentary Evidence

6The CICB received the following documents with respect to the claim: report from Ottawa Police Service dated April 20 2018, a letter of support from Ottawa Victim Services and the Application.

7The police report indicates that the Applicant was at home with her husband, daughter and other family members. Her nephew owed money to her husband. Her nephew texted that he was coming to the house with his friends to dispute this debt. Her husband asked him not to attend the house as the family had extended family visiting them for a wake. When her nephew arrived, he yelled for her husband and began to insult the Applicant and her family. Her husband, nephew, nephew’s friend, the Applicant and other family members were standing on the doorstep. The Applicant was pushed and insulted by her nephew. The nephew began to threaten her husband with physical violence. One of her nephew’s friends stabbed her husband in the thigh above his knee while another friend took his belt and hit her daughter over the head with the buckle.

8The medical reports provided to the Board indicate that the Applicant’s husband suffered a gash to his left thigh above his knee. He required multiple stitches to repair this injury and continued to have pain from it. In addition, he has psychological injuries, such as fearfulness and anxiety.

9The medical records show that the Applicant’s daughter, who was 8 at the time, did not receive medical care. She had a large gash on the top of her head. She also suffered psychological injuries such as night terrors, flashbacks and social isolation.

10The police evidence also shows that the charges were dropped by the Crown, largely to an impression that the family had reconciled with the nephew.

11No therapy reports were provided to the Board in relation to the Applicant.

Oral evidence

12The Applicant testified that she had minor physical injuries from the incident and multiple psychological injuries. She indicated that she fell down from the force of the push. In terms of physical injuries, she had a temporary back pain for which she took over-the-counter medication. She received no medical care for this injury.

13In addition, the Applicant testified that she felt mental anguish from this violence. She doesn’t feel safe in her neighbourhood – an impression which has not changed since the incident. She is attempting to get housing in another area. She had nightmares and has heightened startle reflex. She is hypervigilant, particularly about her children’s safety. She testified that she feels the need to be strong for her family’s mental health.

14We asked the Applicant to clarify the extent of her physiological injuries with respect to her mental and nervous shock claim. She indicated that she was scared that her husband had been severely injured due to the amount of blood from his injuries. She was horrified to see him on the ground and her daughter being hit. The incident brought back memories of the violence common in her country of origin, her former home. Since the incident, she reports that her daughter continues to sleep with them. She won’t let her daughter go to school alone and takes her to the school or the school bus. The children will not play outside in the summer. She reports that the incident has put a lot of strain on her and has affected the whole family in a bad way.

15We asked the Applicant about her desire to receive counselling for her psychological injuries. She indicated that, while her first priority was counselling for her husband and daughter, she would also appreciate counselling to help with her psychological injuries. The letter of support from Ottawa Victim Services also referred to the need to financial assistance for counselling for the Applicant.

ANALYSIS

Crime of Violence

16The incidents were not reported to the Police and there has been no conviction.

17Section 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.

18The Applicant is required to prove, on a balance of probabilities, not only that she was a victim of a crime of violence but also that the injuries resulted from the crime.

19We find the Applicant’s injury resulted from the crime of violence because the police evidence, the oral evidence and the documentary evidence are consistent with the fact that the Applicant was the victim of an unprovoked assault, constituting of a push, from her nephew. We find that she suffered a minor soft tissue injury and multiple temporary psychological injuries from this assault.

Compensation

Pain and Suffering

20In assessing the claim for pain and suffering the CICB considered the extent of her physical and psychological injuries. We award her $1,000.00 for her pain and suffering.

Counselling/Therapy

25In addition, based on the Applicant’s stated intention to enter into therapy in the near future, the Board authorizes up to $600.00 (exclusive of any applicable taxes) for counselling expenses to be paid directly to a qualified treatment provider upon receipt of a Curriculum Vitae outlining the credentials of the service provider (unless the Board 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. Therapy sessions must be completed within 36 months of receipt of this Order. It is the Board’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(s) and the required verification(s) from the Applicant. The Board may also consider therapy expenses that were incurred between the time that the Applicant submitted her final set of documents to the Board and the receipt of this Order. If there are such expenses, the Board will deduct these from the pre-authorized $600.00 amount described above.

MENTAL AND NERVOUS SHOCK

21With respect to the Mental and Nervous shock claim, the Applicant is seeking an award in regards to witnessing the assaults on her husband and daughter.

22Under the Act, an individual, who is not the direct recipient of violence, may be eligible for compensation as a victim herself where the individual is able to establish that she has sustained the injury known as mental or nervous shock, which is a legal term and not 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 at para. 27, is as follows:

a. 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;

b. proximity factors inform the foreseeability analysis for claims of psychiatric injury where there is no physical injury;

c. the relevant proximity factors are:

i. the relational proximity (the closeness of the relationship between the claimant and the victim of the defendant’s conduct),

ii. the locational proximity (being at the scene of a shocking event and observing it or observing its immediate aftermath), and

iii. the temporal proximity (the relation between the time of the event and the onset of the psychiatric illness);

d. the claim must be for actual psychiatric injury caused by the actionable conduct of the defendant;

e. 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;

f. 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.

23Therefore, to be compensable, the Applicant must establish that she suffered psychiatric or psychological injury, which rises to the level of a recognizable psychiatric illness, induced by the shock resulting from the violent occurrence. 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 court are not compensable.

24There is no doubt in this case that the Applicant meets the proximity criteria of the test. The evidence shows that she was present at the scene of the incident. With respect to her relationship with the victim, the Applicant remains the wife and mother of the other victims and shares a close and caring relationship with them.

25However, the Board was unable to find that the Applicant’s injuries rise to the level of a psychiatric illness. While there is no doubt that the unprovoked attack from the Alleged Offenders was traumatic, it doesn’t rise to the severity normally associated with mental and nervous shock.

26The CICB typically requires medical and/or psychological evidence to support a claim for mental or nervous shock. It is not every emotional upset or mental suffering that will provide the basis for this finding. The law is relatively clear that the kind of nervous shock for which recovery may be had involves something more than general emotional upset.

27In the more recent case of Saadati v. Moorhead, [2017] 1 SCR, 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. The court notes:

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.

28Therefore, we are not convinced that the Applicant suffered a long-lasting psychological injury which would rise to the level of mental and nervous shock. The Applicant testified that she remains hypervigilant about the safety of her children, even 2 years after the event. She indicated that she is seeking new housing to be away from the neighbourhood. However, none of her psychological or physical injuries have been severe enough to warrant medical attention. She has continued to function normally and look after her family.

29While the Board is sympathetic to the troubles experienced by the Applicant, we are unable to find that she experienced mental and nervous shock as a result of this incident. Accordingly, that portion of her claim is denied.

AWARD

30The CICB orders compensation as follows:

Subsection 7(1)(d) Pain and Suffering $ 1,000.00

Subsection 7(1)(a) Future Pre-Authorized Expense $ 600.00

TOTAL AWARD (AND COSTS) $ 1,600.00

Less: Preauthorized treatment costs $ 600.00

TOTAL CURRENT AWARD $ 1,000.00

31THE CICB ORDERS the following be paid immediately to the:

Applicant $1,000.00