Re 1708-02657, 2019 ONCICB 9

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicators: M. Saleem Akhtar, Christine McGoey

Date: January 29, 2019

Indexed as: (Re) 1708-02657

DECISION

Appearances

Applicant

Counsel

INTRODUCTION

1The Applicant is 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 (CVCA). The Applicant is the brother of the deceased. In the course of the hearing the Applicant indicated that he had liquidated his own investments and taken out loans from friends and family to pay a mortgage, property taxes and payments on a car to prevent foreclosure on his sister’s property, while his sister was missing and following the recovery of her body. He was unable to deal with the assets of her estate until a Certificate of Appointment of Estate Trustee Without a Will was issued on October 16, 2017.

2The Applicant clarified the basis of his claim for compensation in a letter dated November 27, 2018. He is seeking compensation for loss of income following his sister’s death; for expenses relating to her funeral and burial; for expenses relating to loans he obtained to cover payments on her property; and for bereavement counseling. We understand that the proceeds from the sale of one of the deceased’s properties will be inherited by the deceased and Applicant’s parents and that the Applicant will be entitled to claim the full amount of the payments he made on the two properties and the car as a creditor of the estate. We also understand that the Applicant will not be able to recover the interest he lost in liquidating his investments and the interest on loans he obtained from friends and family in order to make these payments from the estate.

DECISION

3For the reasons set out below, the Board approves the claim and awards a $1,000 for loss of income while the Applicant was on an unpaid bereavement leave following his sister’s death; $51.80 for the remaining funeral and burial costs; $1,400.00 for future counseling; $1,845.02 for pecuniary losses he incurred as a result of the victim’s death; and $400.00 as a contribution for his legal costs.

4In accordance with the Compensation for Victims of Crime Act, RSO 1990, c C24, as amended (CVCA), the CICB grants the Application. Our reasons for this Decision follow below.

HEARING

DOCUMENTARY EVIDENCE

5The Board had before it the following documentary evidence: the application which included a summary of the details surrounding the death of the victim, a chart with details of the financial expenses and losses; supporting documents in relation to those expenses and losses; court documents including an Agreed Statement of Facts on the guilty plea to manslaughter by the offender and pre-Sentence Report; media reports surrounding the incident; Police information relating to the investigation; a proof of Death Certificate; the report of a forensic anthropologist; the post-mortem examination report; the Victim Impact Statement of the applicant; pay stubs from the applicants’ employer; Visa statements from the deceased’s account; bank statements relating to the deceased; CRA 2014 Reassessment, 2015 and 2016 CRA Assessment for the Applicant; a Financial Information Form by the Applicant; receipts relating to the deceased showing the address; correspondence relating to the deceased’s mother with an address at one of the deceased’s properties; receipts from the funeral home; a finance contract for vehicle with the deceased and Applicant as buyers; registration of the vehicle in the deceased’s name; Land Registry document; mortgage documents and tax bills; and a letter dated November 27, 2018 setting out the expenses the Applicant paid, the amounts being claimed and interest calculated pursuant to the Courts of Justice Act at a rate of 3% a year for the period during which he was legally unable to reimburse those expenses from the estate.

ORAL EVIDENCE

6According to the agreed statement of facts filed in the criminal proceedings, on [...], the deceased left her home and met the Offender for dinner. Later both are seen entering the Offender’s apartment building. The deceased was not seen leaving the building. The Offender was arrested for manslaughter in [...]. He pled guilty to manslaughter in [...], and admitted killing the deceased and hiding her body. The accused did not disclose the location of her body until the day he pled guilty. At that time he led police officers to her remains.

7The Applicant’s parents were residents in China but had been staying with the deceased for a lengthy period of time when she went missing. The Applicant and his parents made significant efforts to find the victim and assist in the investigation after she disappeared. It was a terrible time for the family. While the Offender was arrested several weeks later, he did not disclose the whereabouts of the victim’s body until his plea the following January, 2017. According to the Applicant, it was only at this point that they gave up all hope that she was alive. At that time the Applicant took an unpaid bereavement leave from his work for a period of four weeks, losing salary in the amount of $3,019.38.

8At the time of her death the deceased owned two properties. One of those properties was a townhouse, which was mortgaged. The other property was a condominium which was mortgage free. The Applicant testified that the deceased had no life or mortgage insurance at the time of her death.

9According to the application the family was very close, and pooled resources to purchase property. The Applicant and deceased planned to sponsor their parents in immigrating to Canada.

10The Applicant testified that he and his parents moved from the townhouse and now live in the condominium formerly owned by his sister. His parents have inherited that property and it is mortgage free. According to his evidence at the hearing, the Applicant was working full-time at the time of his sister’s death. Shortly afterwards he obtained a job at a significantly higher salary. He testified that his sister had been paying the expenses on both properties at the time of her death. The documentary evidence supports this.

11The deceased died interstate and it took some time for the Applicant to receive a Certificate of Appointment for the estate as the death certificate could not be issued until her body was recovered. Once that occurred, in October, 2017, he was able to legally deal with the property the deceased left behind. The townhouse was put up for sale with a closing date in January of 2019. The parents of the deceased will inherit the proceeds from that sale. Once the mortgage is paid, it is expected that amount will be approximately $400,000.

12According to the Applicant, he had investments of about $8,000 at the time his sister was killed. He testified that he liquidated those assets and borrowed money from friends and relatives to help cover mortgage, car and tax payments by transferring money to his sister’s account. The mortgage on the townhouse was paid on a bi-weekly basis in the amount of $768.47 since June 13, 2016 to the present time. From the time that the deceased disappeared until the receipt of the Certificate of Appointment the Applicant transferred $26,896.45 to cover the mortgage payments on that property. As indicated, there was no mortgage on the condominium. According to the information provided the Applicant paid taxes on the two properties for the months following the deceased’s death and for 2017 for a total of $9,172.96.

13The deceased also had a car which was financed. The deceased made bi-weekly payments of $276.87. According to the Applicant, while he co-signed as a buyer, the car was used by his sister exclusively and registered in her name. It was returned to the dealer in early 2017. According to the information provided to us the Applicant paid $9,690.45 pursuant to the financing terms.

14The Applicant testified that the loans he obtained from friends and family were based on verbal agreements. In his testimony, the Applicant estimated he owed family members and friends about $30,000-$40,000. According to the Applicant, he lost interest on the investments he had to liquidate to help cover the above costs, although we do not have details relating to the investments, and the interest lost. The Applicant also worked extra hours given the financial challenges of covering these costs and some of his parent’s expenses.

15We do have figures for the amount of expenses the Applicant paid out pending settlement of the estate. The Applicant, by letter dated Nov. 27, 2018, calculated the expenses of the Applicant paid out to the benefit of the estate to be $46,811.66. Using the same figures we calculated an amount of $45,811.66. We understand from counsel that the Applicant will be reimbursed for that amount once the sale of the townhouse property closes.

16The Applicant paid for the deceased’s funeral. A substantial portion of that cost was covered by funds from the Victim Quick Response Program. The balance of $51.80 was paid by the Applicant.

17The Applicant seeks reimbursement for an unpaid bereavement leave of four weeks. In the weeks following his sister’s disappearance he and his parents experienced a great deal of stress and anxiety. Even after the arrest of the offender, the Applicant and his parents continued to hope, despite the reality of her continuing absence, that she was alive. This hope was extinguished, finally, in January of 2017, when the offender disclosed the whereabouts of her body. It was a prolonged period of psychological agony. During that time the Applicant had to try to support his parents in their grief and continue to cover the ongoing costs relating to his sister’s property, which was their home and his. The Applicant had difficulty sleeping, eating and focusing on his work and took an unpaid leave for a period of four weeks.

18The Applicant is also seeking bereavement counseling which he was unable to afford at an earlier time.

ANALYSIS

19Section 7 of the CVCA permits compensation for expenses actually and reasonably incurred or pecuniary loss incurred by dependents as a result of the victim’s death. Section 17(3) of the CVCA requires the CICB to take into consideration any compensation or indemnity paid or payable to the Applicant from any source other than social assistance.

20The funeral expenses were $5,051.80. $5,000 of that amount was provided by Victim Quick Response Services. The applicant paid $51.80. We find this expense to be reasonable. Although the Applicant would be entitled to recover this amount from the estate, it is one the CICB would normally pay in such circumstances. We will award the applicant $51.80.

21Based on the evidence at the hearing and the information following it provided in the letter of November 27, 2018, we understand that the Applicant, as a creditor of the estate, will recover the expenses he paid pending the issuance Certificate of Appointment and settlement of the estate, from the proceeds from the sale of the townhouse property with the exception of interest he lost when he liquidated his own assets and the interest he will owe for the loans he obtained to cover the mortgage, tax and car expenses on his deceased sister’s property. In the unusual circumstances before us, we are taking a compassionate view, and find it is reasonable to compensate the applicant for his losses in liquidating his own funds and for a reasonable rate of interest on loans required to carry the properties in an amount consistent with the Courts of Justice Act, R.S.O. 1990, c. C. 43. According to our calculation it is $45,811.66 (principal which will be reimbursed) x .03 (annual interest rate) x 1.34247 (years)=$1,845.02.

22The Applicant is seeking $3,019.38 for lost income while on a four week unpaid bereavement leave. While the CICB would usually award a maximum of two weeks for a bereavement leave, in the unusual circumstances before use, where the deceased was missing for months before her body was found, we find that it is reasonable to compensate the Applicant for four weeks leave at our maximum of $1,000 a month.

23Based on the Applicant’s stated intention to seek bereavement counselling therapy in the near future, the CICB authorizes up to $1,400.00 (exclusive of any applicable taxes). The counselling costs would be paid directly to a qualified treatment provider upon receipt of a Curriculum Vita 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 or public funds. 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.

24The CICB is grateful for the assistance of counsel and will award $400.00 as a contribution to these costs. The CICB recognizes that no amount of money can adequately compensate victims for the injustice they have suffered but also finds the amount of the award to be reasonable within the context of the CVCA.

AWARD

25The CICB now orders payment as follows:

Subsection 7(1)(a) Expenses $ 51.80

Subsection 7(1)(a) Future Pre-Authorized Expense $ 1400.00

Subsection 7(1)(c) Dependency Expenses $ 1845.02

Subsection 7(1)(f) Other Pecuniary Loss/Expense $ 1000.00

Subsection Section 22 Costs $ 400.00

TOTAL AWARD (AND COSTS) $ 4,696.82

Less: Preauthorized treatment costs $ 1,400.00

TOTAL CURRENT AWARD $ 3,296.82

THE CICB ORDERS the following be paid immediately to the:

Applicant $ 2,896.82

Counsel $ 400.00