(Re) 1802-00440, 2019 ONCICB 37

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Kevin Cleghorn Date: March 06, 2019 Indexed as: (Re) 1802-00440

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, R.S.O. 1990, c. C.24, as amended (CVCA). The Applicant is seeking financial support to cover the pecuniary loss related to the loss of financial assistance for the siblings of the Deceased and himself, compensation for loss of income when he accompanied the body of the Deceased for burial in his country of origin and a contribution to funeral expenses. The Applicant originally claimed compensation for mental and nervous shock and bereavement counseling expenses in his Application but he subsequently abandoned those claims.

2The Deceased and his friend were murdered in [..] . The Alleged Offenders were identified and have been charged with two counts of second degree murder. The charges remain pending (trial is likely to occur in 2020).The CICB offers our sincere condolences for this tragic loss under such difficult circumstances.

Decision

3The CICB approves the claim in part for the reasons set out below and awards the Applicant compensation for his contribution to the Deceased’s funeral/burial expenses in the amount of $2,957.51 and a contribution to his loss of wages in the amount of $150.00 when he took time off work to accompany the body of the Deceased to their country of origin.

Issues

4The absence of a conviction does not mean that the CICB is precluded from making an order of compensation. Subsection 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 Applicant is required to prove, on a balance of probabilities, not only that the Deceased was the victim of a crime of violence but also that his death resulted from the crime pursuant to subsection 5(a) of the CVCA.

5If the Applicant has met the above threshold, in deciding whether or not to exercise our discretion to award compensation and the amount thereof, we must consider:

• all the relevant circumstances, including whether the Deceased’s behaviour may have directly or indirectly contributed to his death pursuant to subsection 17(1) of the CVCA.

• any benefit, compensation or indemnity paid or payable to the applicant from any source other than social assistance pursuant to subsection 17(3) of the CVCA.

6It is readily apparent that the Deceased was a victim of a crime of violence. The police questionnaire confirms that the Deceased was the subject of an attack by strangers while walking with his friend outside of a night club. He passed away at the scene. All details of the incident as described by the Applicant are corroborated by the police. There is information that the Applicant has received a contribution of $5,000.00 from the Victim Quick Response Program (“VQRP”) for funeral/burial expenses. There is further information that the family of the Deceased raised $23,280.00 in a “Go Fund Me” campaign to cover some of the expenses associated with the loss, burial and/or transportation of the Deceased to his country of origin.

7The Applicant must provide reliable evidence to support his claim for:

• pecuniary loss incurred by dependants and/or himself as a result of the death of the Deceased pursuant to subsection 7(1)(c) of the CVCA; and

• expenses actually or reasonably incurred as a result of the Deceased’s death pursuant to subsection 7(1)(a) of the CVCA.

Hearing

8The hearing was conducted electronically and CICB considered the oral testimony of the Applicant and the materials contained in the Applicant’s file.

9The CICB received the following documents with respect to the claim:

• media articles confirming that the Deceased and his friend were murdered
• Reasons for Decision on an Application for Judicial Interim Release dated July 4, 2018 regarding one of the Alleged Offenders
• Police Questionnaire from the Toronto Police Service confirming the circumstances of the Deceased’s death
• HST Notice from the Canada Revenue Agency issued to the Estate of the Deceased
• HST Notice from the Canada Revenue Agency issued to the Applicant
• Ontario Trillium Benefit Notice issued to the Applicant
• Airline Ticket for a return trip from Toronto to Istanbul issued to the Applicant
• Invoice from Aftercare Cremation and Burial Service Limited dated October 2, 2017
• Letter from Aftercare Cremation and Burial Service Limited dated October 5, 2018
• Rental Discrepancy form from Homestead Land Holdings Limited dated June 1, 2016
• TD Canada Trust Deposit Slip dated September 29, 2016
• Bank draft from Toronto Dominion Bank dated September 29, 2016
• Money Transfer dated June 18, 2017
• Letter from Canadian Tire dated November 8, 2018; and
• Two letters, both undated, from the Applicant to CICB.

Analysis

Crime of Violence

10Section 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 injuries.

11The Applicant is required to prove, on a balance of probabilities, not only that the deceased was a victim of a crime of violence but that his death resulted from the crime of violence.

12I find that the Deceased is a victim of a crime of violence because all of the evidence is consistent that he was murdered on the street with his friend. All information provided by the Applicant has been corroborated by the media reports and the Toronto Police Service.

Section 17

13Section 17 of the CVCA requires the CICB to consider whether:

(1) the Deceased’s behaviour may have directly or indirectly contributed to his Death;

(3) any benefit, compensation or indemnity was paid or is payable to the Applicant from any source other than social assistance.

14Having considered all the relevant circumstances we are satisfied that section 17(1) is not relevant to this Application. There is no basis whatsoever to conclude that the behavior of the Deceased directly or indirectly contributed to his tragic death. Section 17(3), however, is relevant insofar as VQRP funding was received to partially offset the cost of burial/funeral expenses and a “Go Fund Me” campaign raised substantial funds to assist the family with costs and losses associated with the death of the Deceased.

Compensation

Funeral/Burial Expenses

15The Applicant paid the sum of $2,957.51 to cover the balance of funeral/burial costs after VQRP contributed the amount of $5,000.00. It has been confirmed that the Applicant paid his share out of pocket directly to Aftercare Cremation and Burial Service Limited. I am satisfied that he paid that money from his own resources. There is no indication that he was reimbursed for that amount from any source, including the proceeds derived from the “Go Fund Me” campaign. He will be reimbursed for that amount as it is a reasonable expense directly related to the death of the Deceased.

Expenses to Return the Deceased to His Country of Origin/Loss of Wages

16The Applicant claimed the cost of return travel from Toronto to Afghanistan to restore the body of the deceased to his country of origin. It is not the practice of CICB to award any costs for transportation of a body or ashes to another location unless such transportation occurs solely within Canada. An exception can be made for costs of transportation outside of Canada if the Deceased was a resident of another country when the incident happened (i.e. was vacationing in Canada or was in Ontario on a student visa). The evidence of the Applicant was that he and the Deceased were residing in Canada and had made Canada their permanent residence. As such, no award can be made for transportation of the body or ashes to any country outside of Canada.

17CICB does award loss of wages for time off work (to a maximum of three days) and transportation costs within Canada for the person who is required to arrange funeral and/or burial services in the absence of a mother or father, or wife or husband. The Applicant was the only family member in Canada available to make such arrangements. He was employed by Canadian Tire during that time and was on leave from October 7, 2017 to December 9, 2017. His employer reports that his salary at that time was $1,245.20 bi-weekly (gross). The practice of CICB is to award the net loss of income, as opposed to the gross amount, to a maximum of $50.00 per day. On that basis, we are prepared to award a contribution to the Applicant’s loss of income in the amount of $150.00.

Dependency Claims/Loss of Financial Support

18The Applicant testified that the Deceased was assisting with the support of six siblings who reside in Afghanistan. He produced documentation to verify that the Deceased had sent $600.00 on one occasion for their support, although he advises that other such payments were made from time to time in varying amounts. Only one of the siblings is under the age of majority. There was no indication of any legal obligation that the Deceased had to support his siblings nor any documentary verification of payments other than the one previously referred to. Section 1 of the CVCA does provide that a “dependant” may be a brother or sister of the Deceased “who was in whole or in part dependant on the victim for support at the time of his or her death”. To establish such dependency, it would need to be shown that payments were regular, consistent and part of a legal obligation of some nature (i.e. part of a formal legal agreement or required by court order). A one-time payment is insufficient to establish any form of dependency of that nature. Notwithstanding that, the claims of adults over the age of eighteen years would necessarily have to be brought by each of them individually and on his/her own behalf, assuming that there was jurisdiction to consider such claims in any event.

19The Applicant also claims loss of support for himself. He testified that he was living with the Deceased at the time of his death. The Applicant provided proof of the fact that they were living at the same address and that the Deceased made one payment on account of the rent at their shared premises. He states that he paid their monthly rent and that the Deceased would routinely reimburse him for half of the amount each month. They had lived together from 2012 until the day of the Deceased’s death. Regardless of whether the Applicant and the Deceased, or both of them, made monthly rental payments on the accommodation both occupied together, it does not establish “dependency” within the meaning of the CVCA. They were roommates who may have shared costs in some fashion. The Applicant acknowledged that he has since moved from their joint rental premises to a new rental unit which he now occupies with another roommate; he and his new roommate also split the costs of their shared accommodation. The Applicant provided no legal basis for asserting that he was dependent on the Deceased, other than the need to share costs out of economic necessity. They were independent adults, neither of whom was formally dependent on the other. Rather, they relied upon each other informally to make ends meet from month to month. Neither could have legally claimed support from the other if one of them had moved out of their shared accommodation, save and except if one reneged on a joint legal obligation to their mutual landlord (or to the other brother pertaining to that shared rent arrangement).

20As such, the claims for loss of financial support for the siblings of the Deceased and for the Applicant himself are hereby denied.

Award

21The CICB orders payment as follows:

Subsection 7(1)(a) Expenses $2,957.51 Subsection 7(1)(f) Pecuniary Loss $150.00 TOTAL AWARD $3,107.51

Payment

22The CICB orders that the following sums be paid forthwith to:

Applicant $3,107.51