CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Anne-Marie Langan
Indexed as: (Re) 1611-00471
ORDER
INTRODUCTION
1The Applicant 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 “Act”) on behalf of her son, a person under 18 (the Victim). The Applicant is seeking compensation for pain and suffering for the Victim as a result of an arson that occurred on [date], 2016 due to which the Victim sustained psychological injuries. The incidents were reported to the Police and resulted in both Offenders being convicted of arson by negligence and possession of a substance and received conditional sentences.
DECISION
2The CICB approves the claim and awards the sum of $6,000.00 to the Victim for pain and suffering for the reasons set out below.
ISSUES
3A conviction may be taken as conclusive evidence that a crime of violence has been committed pursuant to section 11 of the Act. Given that there was a conviction in this case, the Applicant is left to prove, on a balance of probabilities, that the Victim’s injuries are the result of the crime pursuant to subsection 5(a) of the Act. The Applicant must provide reliable evidence to support her claims on behalf of the Victim for expenses actually and reasonably incurred as a result of the Victim’s injury pursuant to subsection 7(1)(a) of the Act.
DOCUMENTARY EVIDENCE
4The CICB received the following documents with respect to the claim:
a. Application: the Victim was watching a movie with the Applicant and his brother when they heard a loud bang and loud voices outside. The Victim ran upstairs with his brother to look out a window to see what was happening. He was scared and began to cry and scream ‘Fire! Fire!” The Applicant brought the Victim and his brother outside where they found their neighbour, Offender 1, badly burnt and in distress. They realized that the unit two doors down from them, where the Offenders resided, was engulfed in flames as a result of an explosion in the basement which had destroyed the entire first floor of the unit. Damage was also done to the units attached on each side. From the description of Offender 1’s injuries they were very gruesome and upsetting for the Victim to see. The Victim’s family had to move out for a few days while the cleared out the smoke and some of the debris and investigated the fire. The Victim was very worried about his pets and frequently mentioned that they could have died due to this explosion. At the time of the incident the Victim was [age] old. According to the Applicant he was deeply impacted by this experience and talks about it on an almost daily basis. He talks about it frequently at school as well and missed school frequently following the accident due to anxiety. It took several months to renovate the units affected by the fire and the renovations were a constant reminder for the Victim of the event and the distress he experienced that night. Also, likely due to the construction leaving pipes exposed, they froze and burst leaving the family with no water in their unit for several days. The Applicant notes that the Victim is lower functioning than the average child when it comes to dealing with social interactions and has been receiving counselling for several years (prior to incident) with a behavioural therapist. Due to his difficulties in dealing with even normal everyday situations, the arson was especially traumatic for him. Change is especially difficult for him and there were several changes to his routine following the fire including having to walk to get his school bus as the bus could no longer safely stop in front of his unit due to the construction. The Applicant notes that the Victim has had sleepless nights as he sometimes hears a noise that reminds him of the night of the fire or smells smoke. The Victim also has a severe stress reaction when he hears a fire alarm. Since the fire, the Victim has become “anxious, angry, sad, worried, grumpy, and emotional”. His Doctor referred him for counselling but unfortunately the counselling offered did not prove to be helpful. However, the Applicant feels that further behavioural counselling may be of assistance to the Victim in learning how to cope with the feelings and anxiety he still has concerning this incident.
b. Court documents: Applicant submitted a custody order showing that she has sole custody of the Victim.
c. Media Reports: confirm occurrence of fire and states that explosion in basement and caused first floor to collapse into basement. Confirms that neighbours were injured and had to be taken to hospital.
d. Police Reports: Police were advised that the explosion occurred in the basement. The Offenders admitted to having butane containers in the basement and that they were cooking oil. Fire Prevention Officer [Name] advised that the fire occurred after the explosion. When he arrived on scene he could see flames coming from various openings in the building. The flames were purple then changing colour which is an indication of chemicals. He further advised that the firefighters located 8 visible butane cans and one small propane can. The fire spread quickly throughout the floors above causing an extensive amount of damage to this residence, as well as the neighbouring units.
e. Letter of support: from the Victim’s maternal grandmother who explains that she arrived quickly, within 20 minutes of her daughter’s call, and found that the residence was completely engulfed in flames and firefighters were working to extinguish the fire, but it only seemed to cause the fire to grow stronger. She confirms that the Victim has Autism Spectrum Disorder (ASD) and because of that, wasn't able to fully understand the realm of the fire. He was anxious and crying and extremely cold, as it was freezing rain. He was soaking wet, having not been able to grab proper winter clothing in the rushed state they had to flee their home. The Victim repeats that "they almost died in the fire" and he is convinced there will be another fire or explosion. He worries his home is no longer safe. He tends to focus on that day frequently, as if he's visually replaying the events over and over in his head.
f. Medical Report: confirms that the Victim experienced emotional distress and anxiety as a result of the fire and that as a result of his autism it is not certain that he will ever fully recover from the incident.
ANALYSIS AND DECISION
5Arson is a specifically included offence in the preamble of section 5(a) of the Act. Arson by negligence, the offence that Offender 1 and Offender 2 were convicted of is defined under section 436(1) of the Criminal Code as follows:
Every person who owns, in whole or in part, or controls property is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years where, as a result of a marked departure from the standard of care that a reasonably prudent person would use to prevent or control the spread of fires or to prevent explosions, that person is a cause of a fire or explosion in that property that causes bodily harm to another person or damage to property.
6In this case it was established that the arson was caused by a criminal act involving the cooking of a controlled substance. The Offenders were convicted of arson by negligence which suggests that the Court found that they had a reckless disregard for the safety of others when partaking in the criminal activity which led to the fire.
7As a result of the fire the Victim suffered emotional harm and was required to move out of his unit for a period time. He continued to ruminate about the arson for months following the incident and this impacted his schooling. Due to his Autism, his anxiety around this incident was particularly severe and may continue to impact his life for some time, if not permanently. He had great difficulty adapting to changes in his routine caused by the fire including having to walk to the bus stop and having to go without water for a few days. He missed school as a result of his anxiety and had sleepless nights.
8The CICB therefore finds that the Victim is compensable as a victim of violent crime and awards $6,000.00 in compensation for pain and suffering having had regard to:
a. The fact that the incident occurred next door to his home where he ought to have felt safe;
b. That the incident has had a profound impact on the Victim and on his family’s routine in that they had to move out of their unit for a few days, had to go without running water in their unit for a few days and had to deal with ongoing construction for several months following the incident;
c. That the incident has had a profoundly negative impact on the Minor Victim’s mental health which continues to this day.
9Based on the Applicant’s stated intention to obtain therapy for the Victim in the near future, the CICB authorizes up to $2,400.00 (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 CICB 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 CICB’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 and the required verification from the Applicant. The CICB may also consider therapy expenses that were incurred between the times 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.
AWARD
10The CICB orders payment as follows:
Subsection 7(1)(a) Future Pre-Authorized Expense $2,400.00
Subsection 7(1)(d) Pain and Suffering $6,000.00
TOTAL AWARD (AND COSTS) $8,400.00
Less: Preauthorized treatment costs $2,400.00
TOTAL CURRENT AWARD $6,000.00
11The award for pain and suffering in the amount of $6,000.00 shall be paid to the Accountant of the Superior Court of Justice under section 36(6) of the Trustee Act, RSO 1990, c. T.23, to the credit of [Victim], born on [date], until he attains the age of 18 years on [date].
PAYMENT
12THE CICB ORDERS that the following sums be paid forthwith to:
The Accountant of the Superior Court of Justice for the benefit of [Victim] $6,000.00
DATED at Toronto this 3rd day of August, 2017
_______________________________________
Anne Marie Langan, Member