(Re) 1808-02911, 2019 ONCICB 73

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: James Graham
Date: April 17, 2019
Indexed as: (Re) 1808-02911

DECISION

Introduction

1The Applicant applied to the Criminal Injuries Compensation Board (CICB) seeking compensation for a death resulting from a crime of violence. The Applicant is seeking funeral and burial expenses, and compensation in the form of pain and suffering for mental and nervous shock suffered as a result of the death.

Decision

2In accordance with the Compensation for Victims of Crime Act, RSO 1990, c.C24, as amended (CVCA), the CICB partially grants the Application and awards the Applicant $4,074.30. The reasons for this Decision follow below.

Hearing

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

Evidence

4The Applicant testified that while walking home in [...], her son was harassed, provoked and then stabbed to death. She and her son did not live together at the time. She learned of his death from her son’s father and subsequently from the police. She insisted on seeing his body to confirm for herself that it was indeed her son who had been the victim of the brutal murder. The police would not let her see the body until it was released to the funeral home. She finally saw her son’s remains at the funeral home two or three days after the stabbing.

5Police records show that the Offender was charged with second degree murder. The CICB has received confirmation that the Offender was convicted.

6The death of her son has been a terrible shock for the Applicant. She suffers constant reminders of the death. She has dreams about it and has trouble sleeping. It has damaged her faith in her religion and in God. She is traumatized by the injustice of such a death and suffered greatly through the criminal process.

7The Applicant produced an invoice for the funeral expense of, $8,674.30. Victim’s Services paid $5,000.00 of that invoice and the Applicant paid the balance of $3,674.30. In addition, she had invoices for eight keepsake necklaces of the nine she purchased at a total cost of $803.43. The necklaces were for members of her son’s family and people close to him. She produced further receipts totaling $1,303.96 for a Celebration of Life and she paid $400.00 cash to the minister and the organist, for which she could not provide receipts.

Analysis

Crime of Violence

8A conviction is conclusive evidence that a crime of violence occurred. As there was a conviction for murder in this case, the CICB is satisfied the Applicant’s son was a victim of a crime of violence.

9Therefore, compensation for funeral related expenses is available to the Applicant as a family member of the deceased victim.

10With respect to the pain and suffering claim, the Applicant is required to prove, on a balance of probabilities that her injury resulted from the crime of violence. The issue is whether she meets the test legal test for mental or nervous shock.

11In the case of Dube v Penlon [1994] O.J. No. 1720 which was a tort action, Zuber J. wrote at paragraph 142:

It is necessary that the claimant see or hear the accident or event or its Immediate aftermath and suffer nervous shock as a result .No liability is imposed for nervous shock suffered by someone who is simply told or informed of the accident.

12In Ulmer v Weidmann [2011] B.C.J. No. 15, Truscott J. reviewed cases on mental or nervous shock claims and held that the relevant proximity factors relating to such a claim are the relational proximity (the closeness of the relationship between the claimant and the victim), locational proximity (being at the scene of a shocking event and observing it or its immediate aftermath), and temporal proximity (the relation between the time of the event and the onset of the psychiatric illness).

13In Wilson v The Criminal Injuries Compensation Board (2015) OMSC 7876 (Ont. Div. Crt.) in reviewing a decision of the CICB to dismiss a claim for compensation for mental or nervous shock, Henderson J. held that the summary of the proximity factors set out in the Ulmer case was accurate.

14There is no question that the Applicant was very close with her son and that his sudden and brutal death came as a great shock to her. However, she did not witness the crime or its immediate aftermath. Although she saw the remains of her son, it was not in the immediate aftermath of the crime, but days later in the funeral home. Therefore, I find that the Applicant did not have the necessary proximity to the crime to meet the test for mental or nervous shock. That aspect of her claim is dismissed.

Compensation

Expenses

15The Applicant is claiming $3,674.30 in funeral expenses which is supported by a receipt from the funeral home. That claim is allowed. Although her claim for $200.00 paid in cash to the minister and $200.00 paid in cash to the organist is not supported by receipts, the method of payment is consistent with funeral practices and therefore I find that she incurred those expenses and award the additional sum of $400.00 as compensation.

16The Applicant has also claimed $1,303.96 for a Celebration of a Life and $803.43 for the purchase of commemorative necklaces. I note that the funeral costs included reception catering. Bearing in mind that compensation is paid out of public funds, I do not find it appropriate that these expenses be compensated by the CICB. Those expense claims are dismissed.

Award

17The CICB orders compensation as follows:

Subsection 7(1)(a) Expenses
$ 4,074.30

Total Current Award
$ 4,074.30

Payment

18The CICB orders the following be paid immediately to:

Applicant
$ 4,074.30