CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Louise Charette
Indexed as: (Re) 1706-01839
ORDER
Introduction
1The CICB was terribly sorry to learn of the tragic and violent death of your son, [name], who was murdered on [date] 2015. In this case, two Alleged Offenders were identified. One Alleged Offender was charged with second degree murder and was found not guilty after a jury trial. The second Alleged Offender died prior to prosecution.
2You submitted an Application and are 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 (CVCA). In your Application you indicated that you are seeking compensation for: funeral and burial related expenses, past/bereavement counselling, loss of income and expenses related to the attendance at the criminal trial in connection with the death of your son.
Issues
3Where a death has occurred as a result of a crime of violence, family members of the victim may be eligible for certain compensation under the CVCA. These are as follows:
a. Expenses related to funeral and burial services;
b. Loss of income the victim had provided to support a dependant;
c. Bereavement counselling to assist in coping with grief symptoms.
Decision
4The CICB awards the Applicant the sum of $10,000.00 for funeral and burial related expenses and $2,400 for bereavement counselling.
5The CICB denies the request for loss of income as well as expenses related to past counselling and attendance at the criminal trial which will be explained in the reasons set out below.
Hearing
6The hearing was conducted in writing on the basis of the materials contained in the Applicant’s file.
Documentary Evidence
7The CICB received the following documents with respect to the claim: The Application, submissions, media reports, [city] police synopsis, Claim for disability insurance document, letter from Applicant’s family physician, letter from Dr. [name] and letters from the psychotherapist. The CICB also reviewed the following expense claims; [name] funeral home statement of account in the name of [name], [name] Cemetery invoice in the name of [name], [name] Monument Works receipt in the name of [name] and, past counselling invoices and [name] Guest House accommodation expenses.
Police Synopsis
8The [city] police synopsis indicates that on [date], 2015 the Victim used an App in the hopes of retrieving his cell phone which he had forgotten in a taxi the night before. His search led him to the Alleged Offenders' location. At that time, the Victim was accompanied by his sister. It was noted she approached the vehicle as it exited a McDonald’s drive-thru and asked the men if they had found a phone. The driver answered no, however, when she phoned the Victim’s cell phone the front passenger reached behind the back seat and pulled out a phone that was ringing. She asked for the phone back however the Alleged Offenders told her to prove it was theirs. She then reached inside the vehicle to enter in the lock code to satisfy them but just as she unlocked the phone the driver stepped on the gas to accelerate. As a result, the car lurched forward with her still leaning in the side window which threw her to the ground. The police synopsis notes that the Victim then grabbed on to the moving vehicle; he reached inside and hugged on to the driver’s side door frame and pulled his feet off the ground. The car drove out of the parking lot with the Victim hanging on. The Victim’s sister called 911. Witnesses advised police that the Victim was dragged at an approximate speed of 70-80 kilometers. Police indicate that citizens heard gunshots behind the Shoppers and when they arrive the Victim was deceased.
Medical information
9The Family physician notes in a letter dated [date], 2017 that the Applicant suffers from; anxiety, depression, and PTSD. She has attempted to work however “suffered from poor focus and concentration and her emotional state and tearful episodes made interaction with co-workers and clients impossible”.
10Dr. [name] notes that based on her psychological profile, [Applicant] meets the criteria for “Major depressive episode with anxious distress severe (indicating some may diagnose Complex Bereavement) and PTSD with significant dissociation". According to Dr. [name], she was “functionally impaired as she could not sustain the concentration, pace, level of concentration, persistence or adaptive functioning that would be required for her employment”.
Therapy letter
11The CICB also reviewed letters provided by a psychotherapist in relation to the Applicant. She notes that she received a referral from the Victim Quick Response Program as a result of Victim’s death and that she has met with the family on three different occasions and then also met with family members individually.
12The letter dated [date], 2016 indicates
[Applicant] reports difficulties with sleep, memory and concentration. She finds herself to be depressed, sad, anxious, tired and achy. She is alarmed by her anger, frustration and short temper which on occasion has erupted. Her thoughts are consumed by the horrific and senseless death of her son and the devastating loss of their unique relationship. She is haunted by the real and imagined death and dying scene.
13The CICB also reviewed another letter dated [date], 2018 in which she states she has met with the Applicant on fourteen different occasions between [date] 2015 and [date] 2017. With respect to her emotional state she writes:
[Applicant] questions how she can live life without him and wishes that it was she who had died instead. She is haunted by the horror of him dying alone on the ground and has expressed that everything was taken from them and lives life scared now. She found it extremely difficult to get out of bed and small chores required a major effort. Her concentration and memory was impaired and she was overwhelmed by her sadness and loss. She became very irritable and only had support from a few friends.
14The psychotherapist indicates that she has had no further involvement with any member of the family however notes that further psychological support may be necessary to assist each of them.
Analysis and Decision
15The fact there is no conviction in this case does not preclude the CICB from awarding compensation. Section 16(1) of the CVCA provides that compensation may be awarded whether or not a person has been prosecuted or convicted of the offence giving rise to the injury or death. The CICB finds on a balance of probabilities that [name] was a victim of a crime of violence, and therefore, a Victim within the meaning of section 5(a) of the CVCA.
Funeral and burial expenses
16The CICB is awarding $10,000.00 for funeral and burial related expenses. The information provided by Counsel indicates that the total cost for these expenses was $25,000.75 however the Applicant’s out of pocket expenses were $16,889.85. All receipts provided to the CICB were in Ms. [name] name however the CICB accepted, as submitted by the representative, that these costs were shared with Mr. [name]. Unfortunately, the CICB could not cover all these expenses as per section 19(1) of the CVCA.
Loss of Income
17With respect to the Applicant’s claim for income loss in the amount of $50,211.00, the CICB notes that the Applicant is not a direct victim and therefore the wage loss does not arise from the injury on her. In addition, she does not meet the criteria for a Mental and Nervous Shock award. Having found no compelling reasons to deviate from its usual practice in this instance, the claim in that regard is hereby denied.
Other expenses
18The CICB also considered the Applicant’s claim in relation to the costs associated with travelling and accommodation to attend the criminal trial in the amount of $1,200.00. In accordance with CICB practice, the CICB generally awards compensation only to cover expenses related to treatment of the injuries sustained (i.e. hospital, medication or therapy expenses) and not for expenses related for accommodations to attend court matters. Having found no compelling reasons to deviate from its usual practice in this instance, the CICB declines to award compensation for the Applicant’s claims in respect to the above costs.
19The Applicant is also seeking financial compensation for past counselling in the amount of $2,171.25. Information on file indicates that some costs for the treatment provided by Dr. [name] were covered by her benefit plan however it is unclear from the materials in the file if she received any further benefits for other counselling expenses being claimed. Also, some receipts indicate reimbursed. It should also be noted that the CICB is unable to compensate for these expenses as per section 19(1).
20In his submissions, the Solicitor refers to section 7(2) of the CVCA indicating the CICB may, in addition to the compensation referred to in section 7(1) award compensation for any other damage resulting from the injury for which damages may be recovered at common law. Section 7(2) indicates:
7(2) where the injury to a person occurred in the circumstances mentioned in clause 5(b) or (c), the Board may, in addition to the compensation referred to in subsection (1), award compensation to the injured person for any other damage resulting from the injury for which damages may be recovered at common law.
21In this case the Applicant’s son is the person that was “injured or killed” under section 5. The CICB does not consider this section to mean that the family/dependants are also compensable under this section as they are actually not the “injured person”.
22The CICB understands the emotional impact that the violent death of a relative can have on surviving family members. To assist you in addressing the grief and distress associated with this loss, the CICB authorizes up to $2,400.00 (exclusive of taxes) for counselling expenses to be paid directly to a qualified treatment provider. 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. Counselling 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.
Maximum lump sum award of $25,000.00
23The CICB awarded the maximum allowable lump sum payment in this case of $25,000.00 for funeral expenses and bereavement counselling between three Applicants. Section 19(1)(a) of the CVCA states:
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, $25,000.00
24Since the CICB has issued the maximum allowable lump sum award, it cannot consider any further claims for compensation in respect of this incident.
Section 17(3) – Monies received from Other Sources
25The evidence shows that the Applicant has received monies in the form of life insurance proceeds in the amount of $2,500.00. The CICB is obligated to take these monies into account in accordance with section 17(3) of the CVCA, which reads as follows:
17(3) In assessing compensation, the Board shall take into consideration any benefit, compensation or indemnity paid or payable to the Applicant from any source other than general welfare assistance or family benefits.
26Since the monies already received by the Applicant do not exceed the amount of compensation as assessed by this Panel, the CICB will not deduct this amount in the award.
Section 26(5.1) – right to reimbursement
27Should the Applicant be awarded compensation as a result of a civil action, the Applicant must notify the CICB immediately since the CICB is entitled to be reimbursed from those funds for any amount of compensation it has awarded to the Applicant, pursuant to section 26(5.1) that states:
26 (5.1) The Board is entitled to be reimbursed, out of any amount recovered by the applicant from the offender or any other party, for the amount of compensation awarded to the applicant.
28Please accept the CICB’s deepest condolences for your loss.
Award
29The CICB orders payment as follows:
Subsection 7(1)(a) Expenses funeral $10,000.00
Subsection 7(1)(a) Future Pre-Authorized Expense $ 2,400.00
TOTAL AWARD (AND COSTS) $12,400.00
Less: Preauthorized treatment costs -$2,400.00
TOTAL CURRENT AWARD $10,000.00
Payment
30The CICB orders that the following sums be paid forthwith to:
The Applicant $10,000.00
Dated in Toronto on this 27th day of August, 2018.
Louise Charette, Member