Re 1906-02946, 2020 ONCICB 22

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Keith Forde

Date: September 10, 2020

Indexed as: (Re) 1906-02946

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 the following compensation: mental or nervous shock, bereavement counselling, medical expenses and costs to travel to treatment.

Decision

2In accordance with the Compensation for Victims of Crime Act, RSO 1990, c.C24, as amended (CVCA), the CICB grants the Application and awards the Applicant $1,800.00 for bereavement counselling. The reasons for this Decision follow below.

Hearing

3The Applicant appeared by teleconference and provided oral testimony and submissions.

Evidence

4The Applicant testified that in the early morning hours of June 3, 2017 her biological brother, the Deceased Victim, was on his way home when he had a verbal altercation with the Offender. The situation escalated and punches were thrown. The Offender pulled a knife and fatally stabbed the Applicant in the chest.

3The application filed with the CICB provides somewhat conflicting evidence. In one section of the application, the Applicant states that she assisted her mother in identifying her brother’s body. However, in another section of her application, the Applicant states that she wanted to break the news of her brother’s death to her mother so that she did not hear it from her father or the coroner.

4When the Applicant was asked when and where she identified her brother’s body, she stated it was on June 5, 2017 at the funeral home. When she was asked if her mother was with her, she replied in the affirmative.

5The Applicant testified that having to identify her brother’s body was an image she would never forget.

6Police records show that the Offender was charged with second degree murder. The CICB has received confirmation that the Offender was convicted of the said charge.

7The Applicant testified the death of her brother has been a terrible shock for her. The Applicant testified that she has been diagnosed with Post-Traumatic Stress Disorder (PTSD) and experiences the following symptoms: difficulty sleeping, flashbacks, anxiety and severe depression; she is unable to concentrate for a long period of time, and presently attends a community support group that specialize in grief counselling.

8The CICB was in receipt of a therapy report from the Applicant’s therapist which notes the Applicant suffered from depression, anxiety, insomnia, flashbacks, socially withdrawn, anhedonia, secondary fatigue, and difficulty at work with her interaction with co-workers.

9The Applicant submitted into evidence gas receipts to the CICB totaling $634.35 in support of her claim for expenses to travel between her home town and her therapist.

Analysis

Crime of Violence

10A 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 brother was a victim of a crime of violence.

Injury

11To determine whether the Applicant is compensable as a victim of a crime of violence, she must be able to prove, on a balance of probabilities, that she suffered the injury known as mental or nervous shock. For the reasons that follow, I do not find this to be the case.

12Under the CVCA, an individual, who is not the direct recipient of violence, may be eligible for compensation where the individual is able to establish that he or she has sustained the injury known as mental or nervous shock. Mental or nervous shock is a legal term, rather than 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, is as follows:

…the following elements of the cause of action for nervous shock have been established:

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 the relational proximity (the closeness of the relationship between the claimant and the victim of the defendant’s conduct), locational proximity (being at the scene of a shocking event and observing it or observing its immediate aftermath), and 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.

13A diagnosis of mental injury is not required. In Saadati v. Moorhead, 2017 SCC 28 the Supreme Court of Canada found that there must be evidence to show that the disturbance is serious and prolonged and rises above the ordinary annoyances, anxieties, and fears that come with living in a civil society.

14There is no question that the Applicant was very close with her brother and that his sudden 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 brother, it was not in the immediate aftermath of the crime, but days later at 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 the Applicant’s claim is therefore dismissed.

Compensation

Counselling/Therapy

17Nevertheless, the Applicant may still be compensable pursuant to the CVCA. The CICB understands the emotional impact that the violent death of a brother can have on surviving family members. There can be no question that family members and other loved ones can experience intense distress, trauma and grief from the tragic death of a victim through violence.

18To assist in addressing the grief and distress associated with this loss, the CICB awards $1,800.00 for future bereavement counselling expenses. This amount will be paid out directly to the Applicant. The Applicant can utilize these funds to pay for her future bereavement counselling costs.

Expenses

19The Applicant’s claim for treatment expenses and loss of income is denied because she has not provided receipts or other documentation to support it.

20It is the CICB’s practice to only consider travel to treatment costs when an Applicant is required to travel more than 40 kilometres each way (80 kilometres round trip) outside of her city of residence for treatment. The CICB finds no compelling reason to deviate from that practice under the circumstances. Since the Applicant was not required to travel more than 40 kilometres each way for her treatment/counselling sessions, these expenses are denied.

Award

21The CICB orders compensation as follows:

Subsection 7(1)(a) Expenses – Future Therapy Treatment $1,800.00

Total Current Award $1,800.00

Payment

22The CICB orders the following be paid immediately to:

Applicant

$ 1,800.00