Criminal Injuries Compensation Board
Adjudicator: Maria Tassou Date: August 15, 2018 Indexed as: (Re) 1807-02744
INTERIM DECISION
Introduction
1In an evening in July, 2018 there was a mass shooting in Toronto on Danforth Avenue (the Danforth Shooting). Two people were killed and 13 were injured. The shooter died following an exchange of gunfire with police.
2The Applicant sustained a gunshot wound to his leg. He seeks financial compensation for his injuries from the Criminal Injuries Compensation Board (CICB).
3This is the first Application to the CICB in respect of the Danforth Shooting. It is reasonable to assume that several others may be filed in the future.
4This Interim Decision addresses whether the injuries and deaths which occurred as a result of the Danforth Shooting have a common relationship in time and place and, if so, whether the CICB will exercise its discretion under s. 19(4) of the Compensation for Victims of Crime Act, RSO 1990, c. C.24, as amended (CVCA) to deem them to be one occurrence.
Decision
5For the following reasons I find the injuries and deaths which occurred as a result of the Danforth Shooting have a common relationship in time and place but decline to exercise my discretion under s. 19(4) of the CVCA to deem them to be a single occurrence.
Analysis
CVCA Provisions
6The relevant portions of section 5 of the CVCA state:
Where any person is injured or killed by an act or omission in Ontario of any other person occurring in or resulting from,
(a) the commission of a crime of violence constituting an offence against the Criminal Code (Canada)
the Board, on application therefor, may make an order that it, in its discretion exercised in accordance with this Act, considers proper for the payment of compensation to,
(d) the victim;
(e) a person who is responsible for the support of the victim;
(f) where the death of the victim has resulted, the victim’s dependants or any of them or the person who was responsible for the support of the victim immediately before his or her death or who has, on behalf of the victim or his or her estate and not being required by law to do so, incurred an expense referred to in clause 7(1)(a) or (e) arising from the act or omission.
7There is a two year limitation period on applications to the CICB under s. 6(1) unless the CICB exercises its discretion to extend the time.
8Section 19 provides:
19(1) The amount awarded by the Board to be paid in respect of the injury or death of one victim shall not exceed,
(a) in the case of lump sum payments, $25,000; and
(b) in the case of periodic payments, $1,000 per month,
and where both lump sum and periodic payments are awarded, the lump sum shall not exceed half of the maximum therefor prescribed in clause (a).
(2) The total amount awarded by the Board to be paid to all applicants in respect of any one occurrence shall not exceed,
(a) in the case of lump sum payments, a total of $150,000; and
(b) in the case of periodic payments, a total of $365,000.
(3) Where the total amount awarded in respect of any one occurrence exceeds the maximum amount prescribed by subsection (2), the amount prescribed shall be distributed in proportion to the amounts of the awards that would otherwise have been made.
(4) For the purposes of this section, the Board may deem more than one act to be one occurrence where the acts have a common relationship in time and place.
(5) Subsection (1) does not apply to amounts awarded in respect of an injury or death incurred under clause 5 (b) or (c) and such amounts shall not be taken into account for the purposes of subsection (2).
Implications
9If the Danforth Shooting is deemed to be one occurrence, the maximum award for all applicants would be $150,000 for lump-sum payments and $365,000 for periodic payments. If the assessed awards for all the applications received exceed those amounts, awards would be paid out proportionally so as not to exceed the above-stated maximums. Awards could not be paid out until all applicants were known to the CICB and all awards were decided. This could take several years given the two year period in which an application can be filed.
10Alternatively, if the applications involving the Danforth Shooting are treated as individual occurrences, the maximum award for each injured applicant would be $25,000 for a lump sum payment or $1,000 per month for periodic payments. Each application would be assessed individually and would not be affected by other awards. There would also be no need to wait for the limitation period to expire to determine the full class of applicants.
Is There Common Relationship in Time?
11Cogan v. CICB, [1992] O.J. No. 2405 (Div. Ct.), and Evoy v. CICB, 2001 unreported decision of the Divisional Court, both found the CICB erred in applying s. 19(4) because there was no common relationship in place and time. This conclusion confirms the need to determine the time and place relationship before considering whether to exercise discretion and, in that respect assists my overall analysis. However the facts in both decisions are not helpful to my analysis of the Danforth Shooting. In Cogan the events occurred a year apart and in Evoy the events were separated by a month. By contrast, the Danforth Shooting occurred within a few minutes around 10 p.m. This suggests the injuries and deaths which resulted from the shootings occurred at the same time or within minutes of each other.
12“Time,” used in s. 19(4), is not defined in the CVCA. As such, the CICB must look outside the CVCA for guidance. The word “time” is defined in the Merriam Webster dictionary as “the point or period when something occurs” or “a moment, hour, day, or year as indicated by a clock or calendar”.
13Given that the shootings occurred within a span of a few minutes and are in such close temporal proximity, I find that the Danforth Shooting shares a common relationship in time.
Is there a Common Relationship in Place?
14The term “place” is not defined in the CVCA. The word “place” is defined in the Merriam Webster dictionary as “a physical environment” or “physical surroundings” or “a particular region, center of population, or location.”
15In this case, the shootings occurred along a short stretch of Danforth Avenue. The crime scene extended over a few hundred metres in and around Chester Avenue and Logan Avenue. After shooting several pedestrians on the sidewalk, Mr. Hussain opened fire at several patrons in cafes and restaurants in close proximity to one another.
16I find that the Danforth Shooting was an uninterrupted course of conduct by a single perpetrator over a short distance.
17The shootings occurred within the same physical environment, surroundings and location. Given these facts, I find that there was a common relationship in the place where the shootings occurred.
18Since I am satisfied that the injuries and deaths caused by the Danforth Shooting have a common relationship in place and time, I must now decide whether to exercise my discretion under s. 19(4) to deem the Danforth Shooting to be a single occurrence.
Considerations Relevant to Exercise of the CICB's s.19(4) Discretion
19I find the following factors affect the exercise of my discretion in this case.
Purpose of the CVCA
20Section 64(1) of the Legislation Act, 2006, S.O. 2006, c. 21, Sched. F states:
An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.
21In Skunk v. Criminal Injuries Compensation Board, 2006 ON SCDC 11440, the Divisional Court described the purpose of the CVCA as follows:
The statute is remedial, is designed to compensate victims of violent crime and any ambiguity should be resolved in favour of a claimant.
22The CICB’s discretionary decisions must have regard to the purpose of the CVCA when read as a whole. If the exercise of the CICB's s. 19(4) discretion undermines both the timing and the amount of compensation available to victims of crime this would not be consistent with the CVCA's purpose. The CICB’s discretion should be exercised in a way that is consistent with the CVCA's objective which is to compensate victims of violent crime.
23Further, I find that deeming the Danforth Shooting to be one occurrence would contradict CICB’s commitment to the Victims of Bill of Rights, SO 1995, c. 6.
Delay in Awarding Compensation
24The public has an interest in the prompt exercise by the CICB of its powers. The CICB's process is expected to be simple, summary and expeditious. If the CICB deems the Danforth Shooting to be a single occurrence, it would not be able to issue awards until all applications are heard following the expiry of the statutory limitation period for making claims. This result is inconsistent with a statutory scheme which is intended to provide immediate compensation to victims of crime. Further, it might require victims to wait at least two years and probably longer to obtain compensation for needed medical treatments or to begin therapy.
25Treating applications arising from the Danforth Shooting separately rather than as a single occurrence will allow the CICB to process each application as it is received. If deemed to be one occurrence, the CICB would have to hold preliminary hearings for each applicant to determine potential compensation, wait until the two year limitation period for filing applications passed, and then hold further hearings for each application to pro-rate the maximum award under s. 19(3). On the other hand if each application is treated separately the CICB could hear the application and make its award immediately after each hearing.
Fairness and Consistency
26The imposition of lower maximums depending on whether there were other victims would be difficult to justify in the context of the Danforth Shooting. The CICB can use its discretion to ensure that ss. 19(4) and 19(2) are applied fairly and appropriately since like cases should be treated similarly for the purpose of consistency.
27I find that there is no rational connection between the presence of other victims and the maximum amount of compensation available to any one victim in respect of the Danforth Shooting.
Public Interest
28Considerations of policy and the public interest are also appropriately considered in the exercise of the CICB's s. 19(4) discretion.
29The Danforth Shooting received wide public attention both nationally and internationally. In the days and weeks following the Danforth Shooting, there was a large display of empathy and compassion for those injured and for the family members of the victims that died. In Toronto, the community rallied together and held public vigils in support of the victims.
30It would be difficult to justify a decision which would delay and reduce compensation to those victims given the public reaction to the Danforth Shooting.
What is Just?
31The purpose of the CICB's discretion is to ensure that a just result is reached in any given case. The CICB must look to the best interest of the victim and ensure there is consistency with the CVCA when determining what is “just”. The CICB must also look at the nature and seriousness of an Applicant’s injuries and whether they are in urgent need of compensation when considering what is “just”.
32The Applicant’s injuries in this case are serious. The gunshot wound went through his upper left thigh. He has mobility issues and requires further treatment for his injuries.
Conclusion
33Considering the factors discussed above, I am satisfied it is fair, just and most consistent with the purposes of the CVCA to decline to exercise its discretion to treat the Danforth Shooting as a single occurrence. This will allow each application to be considered and assessed on its merits and the awards made in other applications will not affect them.
34Given the potential number of applicants affected by the Danforth Shooting, it is likely that the Applicant’s award would be reduced if the acts were deemed to be a single occurrence. There would also be a significant delay in processing this application if the CICB had to wait for the limitation period to expire to assess the full class of potential applicants. The potential delay and reduction in award would cause this Applicant to suffer a hardship given the seriousness of her injuries.
35For all these reasons I decline to exercise my discretion to deem the Danforth Shooting to be a single occurrence.
Dated at Toronto this 15th day of August, 2018.
Maria Tassou, Associate Chair