CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Pamela Arnott
Indexed as: Re 1802-00690
DECISION
Introduction
1The Applicant applied to the Criminal Injuries Compensation Board (CICB) seeking compensation for injuries resulting from a crime of violence. The Applicant is seeking the following forms of compensation: expenses, loss of income, loss of financial support, and bereavement counselling. She is also seeking pain and suffering as a result of suffering from mental and nervous shock (MNS).
Decision
2In accordance with the Compensation for Victims of Crime Act, RSO 1990, c C24, as amended (CVCA), the CICB grants the Application. Our reasons for this Decision follow below.
Hearing
3The hearing was conducted in writing on the basis of the materials contained in the Applicant’s file.
Evidence
4The Applicant submitted that she was told by police on [..] that her son had been murdered in a shooting. The police investigation indicates that this was a case of mistaken identity.
5The Applicant indicates that she was grief-stricken at the news of her son’s unexpected death. As a single mother, she feels that the loss of her son is doubly significant as she relied on him emotionally, financially and socially. She continues to question the reason for this incident and feels haunted by the loss of her son. She has been receiving counselling from a medical doctor at a local hospital.
6The Applicant indicated that she had received $10,000.00 from the Financial Assistance for Families of Homicide Victims for funeral and other expenses. She also received $1,200.00 from Ontario Works and the City of Toronto and $4,620.00 in charitable donations.
7No receipts were provided for any funeral or other expenses.
8No pay stubs or other employment information for the Applicant or her son were provided to the CICB. A letter from the City of Toronto indicates that the Applicant was receiving social assistance at the time of her son’s death.
9The Applicant received an award for interim funding, pending this hearing, for bereavement counselling in the amount of $1,000.00.
Analysis
Crime of Violence and Injury
10The incidents were not reported to the Police and there has been no conviction.
11Section 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.
12The Applicant is required to prove, on a balance of probabilities, not only that her son was a victim of a crime of violence but also that his injuries resulted from the crime.
13We find the Applicant’s son is a victim of a crime of violence based on the uncontradicted police evidence of the murder of her son.
14Further, in order to be compensable for pain and suffering, the Applicant must prove on a balance of probabilities that she suffered the injury of MNS as a result of the crime of violence.
15The legal test for MNS, 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 at para. 27 is as follows:
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.
16To establish the injury known as mental or nervous shock, all of the criteria set out above must be met. While there is no question from the Applicant’s statement that she had a close and loving relationship with her son, we are unable to find that the rest of the above criteria are met. For example, the Applicant was not at the scene when her son died nor did she establish that her mental injury was serious and prolonged, rises above the ordinary sadness, anxieties and fears that come with living in civil society as considered in Saadati v. Moorhead, 2017 SCC 28, [2017] 1 SCR 543.
17While we do not find that the Applicant’s injuries rise to the level of MNS, we do find that she suffers from continued grief and incomprehension of the death of her son.
Compensation
Pain and Suffering
18Given that the Applicant is has not established that she suffered the injury of MNS, she is not eligible for pain and suffering.
Expenses
19The Applicant must provide reliable evidence to support the claims for expenses actually and reasonably incurred as a result of the death of her son.
20The Applicant's claim for expenses is denied as she has not provided any receipts to substantiate this claim. The hand-written notations from the Applicant are not clear. In addition, the CICB notes that the Applicant received funding from other sources which was intended for funeral and burial expenses.
Loss of Income and Loss of Financial Support
21The Applicant's claim for lost income is denied as she has not provided any documents to substantiate this claim. Further, the letter from the City of Toronto indicates that the Applicant was on social assistance.
22Similarly, there is no information available to the CICB that would assist in quantifying any financial support the Applicant received from her son.
Counselling/Therapy
23The Applicant suffers from continued grief. As the Applicant intends to enter into therapy in the near future the CICB authorizes up to $2,000.00, exclusive of any applicable taxes, for bereavement counselling.
24The 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.
25Payment 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.
26Therapy expenses incurred between when the Applicant submitted her final documents to the CICB and when she receives this Decision will be deducted from the pre-authorized amount if an invoice and confirmation of treatment provider's professional status is provided.
Award
27The CICB orders compensation as follows:
Subsection 7(1)(a) Expenses (Section 14) Award $1,000.00
Subsection 7(1)(a) Future Pre-Authorized Expense $2,000.00
Total Award (and Costs) $3,000.00
Less: Section 14 Award – already paid/authorized $1,000.00
Less: Preauthorized treatment costs $2,000.00
Total Current Award $0.00
Dated at Toronto on March 21, 2019
_______________________________
Pamela Arnott, Board Member