Re 1708-02656, 2019 ONCICB 12

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Christine McGoey

Date: January 30, 2019

Indexed as: (Re) 1708-02656

DECISION

Introduction

1The Applicant applied to the Criminal Injuries Compensation Board (CICB) seeking compensation for pain and suffering for psychological or emotional injuries, future counseling and loss of income for injuries resulting from the murder of his friend and neighbor.

Decision

2In accordance with the Compensation for Victims of Crime Act, RSO 1990, c C24, as amended (CVCA), the CICB grants the Application. My reasons for this Decision follow below.

Hearing

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

Evidence

4The Applicant testified that he had known the deceased and her family, who lived a couple of houses down the street, for several years. He indicated that he would visit their home regularly and their children would often come to his home. He described their relationship as ‘pretty close’.

5During an evening, the Applicant was visiting with the deceased and some of her friends and family in the garage of her home. They were just about to go into the home when the deceased indicated she wanted to have a cigarette. The garage door was open. The Applicant and others noticed a car drive by the home slowly. The car returned and the passenger began shooting several shots towards the garage hitting brickwork. The deceased told them to get down. The deceased, who had been standing in the open door area, was shot in the abdomen. They closed the garage door and tried to make their way into the house, but the deceased collapsed on the steps. The Applicant and others picked her up to bring her inside for safety. By the time they got inside her home the deceased was having trouble breathing. The Applicant, who had training, performed CPR until the paramedics arrived but the deceased died at the scene.

6The Applicant did not receive any physical injuries as a result of the shooting. He testified that in the days following the killing he was not able to go outside due to fear. According to the Applicant, he missed a week of work as a result. He was provided with an opportunity to provide the CICB with the relevant documentation for this loss of income and provided information from his employer indicating he took four sick days in April following the incident.

7The Applicant testified that in the weeks and months following the incident he experienced fear and anxiety which was triggered by loud noises or by being in crowds or public areas, where he did not feel safe. He had constant flashbacks to the incident and withdrew socially. At night the scene would replay itself in his head, his sleep was disturbed by dreams relating to gunshots coming from a car. Over time there has been some improvement but the Applicant still tries to avoid situations where there are many people. He finds it hard to go alone to public places like grocery shopping and tries to avoid situations which might involve crowds or loud noises. His sleep has improved somewhat.

8The Applicant has not received counseling because he was not sure that it would be covered by his benefits. He is interested in receiving counseling.

Analysis

Crime of Violence

9The incident was reported to the Police, the Applicant testified at the resulting trial and an individual was convicted of the murder of the deceased. The Applicant was present and nearby when shots were fired hitting the brick wall near the garage and the deceased. He immediately helped to try to get the victim, who was a friend, to safety and then administered CPR. In these circumstances I am satisfied on the evidence that that in witnessing the crime of violence to the primary victim, the Applicant suffered nervous shock and resulting psychological injuries arising from being present during the crime of violence. In addition, in coming to the immediate aid of the victim in such circumstances he is compensable.

Compensation

Pain and Suffering

10The CICB did not have the benefit of a therapeutic report or other medical information. In assessing the claim for pain and suffering the CICB considered the application and testimony of the Applicant. I am satisfied that the Applicant suffered psychological injuries as outlined above as a result of the shock of witnessing the crime of violence against the victim. As a result the Applicant is compensable. In the circumstances before me I will award $7,000.00 for pain and suffering.

Expenses and Income Loss

11The Applicant must provide reliable evidence to support the claims for income or pecuniary loss incurred as a result of his inability to work for the week immediately following the killing of the victim. Based on the information forwarded to the CICB on December 19, 2018 I am satisfied that the Applicant missed four days of work as a result of the trauma of witnessing the killing of the deceased.

12It is the CICB’s practice to reimburse income loss to a maximum of $1,000.00 per month or $50.00 per day and having considered the particular circumstances of this case, I find no compelling reason to deviate from that practice. The Applicant's claim for lost income granted and he will be awarded $200.00 (4 days @ $50.00 per day).

Counselling/Therapy

13As the Applicant intends to enter into therapy in the near future the CICB authorizes up to $1,200.00, exclusive of any applicable taxes, for counseling.

14The CICB awards up to $100.00 for each therapy session and up to $125.00 for each therapy session conducted by a registered psychologist. The CICB does not provide compensation for therapy sessions covered by an applicant's employment or insurance benefits.

15Payment is made directly to the approved treatment provider on submission of an invoice and receivingconfirmation of the treatment provider's professional status unless the CICB already has confirmation on file.

Award

16The CICB orders compensation as follows:

Subsection 7(1)(d) Pain and Suffering $7,000.00

Subsection 7(1)(a) Future Pre-Authorized Expense $1,200.00

Subsection 7(1)(b) Income Loss $ 200.00

TOTAL AWARD (AND COSTS) $8,400.00

Less: Preauthorized treatment costs $1,200.00

TOTAL CURRENT AWARD $7,200.00

17THE CICB ORDERS the following be paid immediately to the:

Applicant $7,200.00