CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Jo-Anne Hughes
Indexed as: (Re) 1509-00819
ORDER
Introduction
1In this case, the Applicant is seeking funding for bereavement counselling and compensation for mental and nervous shock and loss of income with respect to the alleged murder of her son, [Victim], on [date], 2013. The CICB offers its sincere condolences for this senseless loss under such terrible circumstances.
2The Applicant is required to prove, on a balance of probabilities, and the CICB is required to determine whether the Applicant was a victim of a crime of violence per section 5(a) of the Compensation for Victims of Crime Act, RSO 1990, c. C.24 (the “Act”), what injury, if any, resulted from it, and whether there are any relevant circumstances that may affect whether or not compensation should be awarded and if so, the amount.
3Under the Act, an individual, who is not the direct recipient of violence, may be eligible for compensation as a victim themselves where the individual is able to establish that he or she has sustained the injury known as mental or nervous shock, which is a legal term and not a medical diagnosis.
4The 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:
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.
5To 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.
Incident
6In her August 2015 submission to the CICB, the Applicant wrote that her son was shot by another person. The Applicant wrote that she was working at the time of her son’s death and she took a month off work to grieve for him. She also claimed she “came across the scene of the crime” and that she “witnessed her son die before her eyes” in the Hospital.
Police Report
7The CICB received a report from the [Name] Police Service in support of the Applicant’s claim which confirmed that the [age] Victim’s demise was caused by the accidental discharge of a firearm. Police wrote that at the time of the incident, the Victim was sitting in a bedroom with three other people in an apartment across the road from the Victim’s family apartment. The Young Offender came into the room with a loaded shotgun and while playing with it, the gun accidentally discharged, hitting the Victim in the neck.
8Police received the 911 call about a shot being fired in an apartment at 23:49 late in the evening of [date], 2013. When they arrived at the scene, the apartment was vacant except for the unresponsive Victim who was suffering from a gunshot wound to his neck. Police provided medical assistance to the Victim until EMS and Firefighters arrived. He was transported by an emergency run to [Hospital] where doctors tried to save his life until he was pronounced deceased at 1:55 a.m.
9As a result of their investigation, the Young Offender was charged with manslaughter and four other firearm-related offences. On [date], 2014, he pled guilty to manslaughter and was sentenced to 278 days of pre-sentence custody plus 51 days of open custody and 627 days of conditional supervision. His DNA was added to the national offender’s databank and he was prohibited from possessing weapons for ten years. The firearm charges were withdrawn by the Crown.
Medical Reports
10In a May 24, 2017 phone call to the CICB, the Applicant said she sought treatment from her Family Doctor and she was prescribed medication, as she was having panic attacks and insomnia.
11On June 24, 2017, the CICB received a Medical Report, dated [date], 2017, from the Applicant’s Family Doctor since 2011 [Name]. This Report said the Applicant suffered from depression, anxiety, panic attacks and insomnia since the death of her son on [date], 2013. She said the Applicant was treated with “low dose anti-depressant/anti-psychotic and counselling” since [date] 2013 every 3-6 months. The Family Doctor noted the Applicant’s prognosis was “unknown/poor” and “It’s been four years and she appears to have some symptoms.”
Expenses
12On May 5, 2017, the CICB received an update from the Applicant to indicate that she was not making a claim for loss of income.
Analysis and Decision
13Considering the available evidence, the CICB finds that the Victim is a victim of a crime of violence under the Act, and the CICB finds that the Applicant is eligible for Bereavement Counselling to assist with her grief at the tragic loss of her son.
14Based on the Applicant’s stated intention to enter into therapy 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. 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 date 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.
15As noted above, the CICB is being asked whether the Applicant is compensable for the alleged mental and nervous shock she suffered. Considering the evidence provided, the CICB has no doubt, based on the evidence before it, that the Applicant was present for the immediate aftermath of the incident while her son was being treated at the hospital and that she has a close relationship with him. As a result, it is understandable that she would be profoundly affected by this experience.
16Considering this evidence, supported by the injuries reported by the Applicant’s Doctor, the CICB is satisfied that the Applicant witnessed the “immediate aftermath” of the event and suffered her injury as a direct result thus meeting the criteria outlined above. Accordingly, the CICB finds that the Applicant has suffered the injury known as mental or nervous shock and she is thereby a victim within the meaning of section 5(a) of the Act.
17Considering the facts of this case, and the evidence provided by the Applicant, the CICB is awarding $9,000.00 for pain and suffering.
Award
18The CICB orders payment as follows:
Section 7(1)(a) Future Pre-Authorized Expense $ 2,400.00
Section 7(1)(d) Pain and Suffering $ 9,000.00
TOTAL AWARD (AND COSTS) $11,400.00
Less: Preauthorized treatment costs $ 2,400.00
TOTAL CURRENT AWARD $ 9,000.00
19The 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 Act.
20In closing, the CICB extends its deepest condolences to the Applicant and her family.
PAYMENT
21THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $9,000.00
DATED at Toronto this 16th day of August, 2017.
Jo-Anne Hughes, Member