(Re) 1806-02065, 2019 ONCICB 61

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Christine McGoey Date: April 8, 2019 Indexed as: (Re) 1806-02065

DECISION

Introduction

1The Applicant applied to the Criminal Injuries Compensation Board (CICB) seeking compensation for a death resulting from a crime of violence. The Applicant is seeking compensation for nervous shock, future counseling expenses and loss of income.

Decision

2In accordance with the Compensation for Victims of Crime Act, RSO 1990, c.C24, as amended (CVCA), the CICB grants the Application and awards the Applicant $7,000.00 for pain and suffering, $2,000.00 for lost income and $2,400.00 for future counseling. The reasons for this Decision follow below.

Hearing

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

Evidence

4The Applicant testified that his sister was murdered on [...]. The following day he received a phone call from his grandfather telling him she had died and to come to her home. The Applicant and his wife rushed to the location. They saw police at the home where his sister and her young daughter lived. The police advised him that they were investigating a homicide and that he could not enter the home. The Applicant believes the police advised him at that time that the individual who had killed his sister had tried to kill himself and was in the hospital. Officers directed him to the house next door where his niece had run, going past her mother's body in the backyard.

5The Applicant and his wife went to the neighbour's house and met with their niece. Police information indicates that the homes are several hundred meters apart. The Applicant testified that when he was at the neighbour's home he could see into the backyard of the home where his sister had been living and saw a blanket covering her body. The police asked the Applicant, his wife and their niece as well as other family members who had arrived to attend the police station. They drove there and were interviewed by police later that day.

6The Applicant testified that two days later he attended the home, after the scene had been released by the police. Cleaners were there. He observed blood on a wall and the mattress, which he helped carry out of the home. He understood that his sister was attacked inside and ran out of the home where she was attacked again. He observed the imprint in the snow where she had lain under a blanket. The agreed facts on the plea indicated that the Offender also cut himself inside the home.

7A radio call to police on January 23, 2017 indicated a little girl had come to the caller's home and told her to call 911 because her mom was dead and a man in the house said he was going to kill himself. Police information indicates that when they arrived on the scene they found a key ring on the small deck at the rear door of the home where the deceased lived. The house was unlocked. When they entered a bedroom they found the Offender lying face down on the bed bleeding heavily from the neck, with blood on the sheets and floor at the edge of the bed. He was taken to the hospital. Police found the deceased under a blanket behind the residence in a patch of snow.

8The documentary evidence from the police confirms that the Applicant attended the scene on the day of the murder and was directed to the home of the neighbour while the deceased still lay at the scene under a blanket.

9The Applicant said that his initial thoughts on arriving at the scene were of revenge. He testified that he experienced a variety of emotions which included sadness, anger, and loss. According to the Applicant, his mother was absent during his early years, and his sister, who was a little older, was not only a sister to him, but his best friend, and was like a mother to him.

10The Applicant said in the days and weeks following these events he was in a state of shock and disbelief. He felt really lost, and distanced himself from his spouse. He continues to suffer from depression as a result of losing his sister. Since his sister's death he and his wife have obtained custody of her daughter. The Applicant testified that the immediate and ongoing challenges of dealing with his niece, who saw her mother being attacked and spent the night in the home with the Offender, delayed his ability to process the events. He continues to grieve for his sister. The Applicant stated that as a result of the custody arrangement there is a significant rift with family members, including his mother and her family, which has contributed to his depression, making it worse. His family has not supported the Applicant and his wife in their role as caregivers to the deceased's daughter. As a result of the trauma she experienced she continues to suffer from the effects of what she witnessed and the loss of her mother.

11The Applicant and his niece attended sessions to prepare for testifying at the criminal trial. Shortly before the trial the Offender pled guilty to murder. The file contains the Agreed Statement of Facts which was submitted on the plea. It provides further details surrounding the murder of the Applicant's sister.

12The Applicant has been attending counseling sessions with his niece to help deal with the trauma she suffered. He reported stress relating to parenting a child who has experienced so much trauma and the impact of this on his ability to work. He has also been attending sessions with his family doctor. A report from his doctor indicates that he is suffering from depression secondary to mental trauma from the death of his sister and as a result of caring for his niece. The condition is described as temporary. He has been prescribed medical marijuana to help deal with insomnia and lack of appetite. The Applicant testified that no medication for depression had been prescribed.

13The Applicant testified that he suffers from nightmares surrounding the events relating to his sister's death. In his application he indicated he continues to experience invasive memories of the scene. His niece has spoken to him in vivid terms about what she experienced.

14The Applicant testified he is now ready to pursue counseling for himself and is on a wait list.

15The Applicant testified that at the time of his sister's death he was employed in seasonal work, doing cement work in the summer and snow plowing in the winter. After his sister's death he testified he tried to go back to work but found he had difficulty focusing on solving problems and he would get frustrated and leave. He feels he is unable to complete tasks. He hopes to start a business in the future but feels overwhelmed and unable to control his emotions. He received employment insurance until December of 2017.

16In an earlier application the Applicant applied to the CICB on behalf of his niece for pain and suffering arising from nervous shock, and for expenses relating to the raising of his sister's daughter. The minor child received an award for pain and suffering, and future counseling. The Applicant was awarded $750.00 a month to assist with expenses relating to the dependant child.

17The Employer's Report submitted by the Applicant indicated that he had been employed as a labourer since August of 2016 and that he last worked December 5, 2016, approximately 7 weeks before his sister's death. The Applicant indicated that the construction season was generally from May to November and that he never returned to this job following his sister's murder. According to the Employer's Report the reason the Applicant gave for his absence from work was that he was needed as a full-time caregiver to his young niece. He indicated in his testimony that he became a full-time care giver and that there were many appointments for therapy and court for his niece which he often accompanied her to. I asked if his wife was employed and was advised that she did not work outside the home. The Applicant's niece is in elementary school full-time.

Analysis

Crime of Violence

18The Applicant's sister was murdered and the Offender was convicted of murder. As a result there is no issue that there was a crime of violence. The Applicant must prove, on a balance of probabilities, that his injuries resulted from nervous shock as a result of that murder.

19The first step in assessing a nervous shock claim is to determine whether there is a duty of care owed by the wrongdoer to the claimant. In circumstances in which there is no well-accepted duty of care, a consideration of proximity factors is necessary in deciding whether to impose a duty of care. (See Wilson v. CICB, 2015 ONSC 7876 (Div. Ct.) at para 16). A claimant may prove the existence of a duty of care by asking whether there is a sufficiently close relationship between the parties such that it was reasonably foreseeable that the carelessness or wrongdoing might cause damage to the other party and whether there were any considerations which ought to limit the scope of the duty, the class of persons to whom the duty is owed, or the damages (Wilson, supra, paras. 17- 19).

20Relevant proximity factors are relational proximity (the closeness of the relationship between the claimant and the victim); locational proximity (being at the scene of a shocking event and observing it or observing its immediate aftermath); and temporal proximity (the relation between the time of the event and the onset of psychiatric illness). It must be concluded as a matter of law that a reasonable person should foresee that his conduct is such that 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. (Wilson, supra, para 27)

21The Applicant was the brother of the deceased. They had a close relationship. He attended the neighbour's home at the direction of the police and saw, albeit at some distance away, the blanket covering his sister's body in the backyard of her home. He immediately went to provide a statement to the police and took custody of his young niece who was traumatized by the events. Within days he attended the home where the blood of the Offender was present. In these circumstances relational and locational proximity factors are present. (See Saez-Larrazabal v. CICB, 2012 ONSC 3500)

22In Saadati v. Moorhead, 2017 SCC 28, [2017] 1 SCR 543, the Supreme Court considered the issue of whether it was necessary for claimants to adduce expert evidence that their mental condition or emotional state meets the threshold of "recognizable psychiatric illness." The Court ruled that to establish mental injury, claimants must show that the disturbance is serious and prolonged and rises above the ordinary annoyances, anxieties and fears that come with living in civil society. While expert evidence or a medical diagnosis can assist in determining whether or not a mental injury has been shown, it is not necessarily required.

23The Applicant submitted a report dated Jan. 20, 2019 by his family doctor who had been seeing him since October of 2016. The report does not provide much detail and simply states, "Depression secondary to mental trauma from death of sister; required to care for niece and provide daily care since passing of her mother". The report indicates that the Applicant was attending the doctor's clinic for counseling. While the mental health concerns and caregiver requirements were described as ongoing due to the event, the condition of the Applicant was described as temporary. The report notes the Applicant was unable to work due to ongoing mental health concerns from Jan. 23, 2017.

24A report dated Sept. 20, 2018 from family services notes that the writer was not the Applicant's counselor but had been working with the family and that the Applicant's involvement was an essential and vital part of his niece's counseling. According to the writer, the Applicant reported experiencing stress in relation to parenting a child who experienced much trauma. He stated that it impacted the family routine and has negatively impacted his ability to work.

25The Employer's Report indicated the Applicant had started working on August 2, 2016, and was absent December 5, 2016, several weeks before the incident. The Applicant received employment insurance for parental leave and other income benefits from January 10, 2017 to December 3, 2017 in the amount of $27,681.00. As a result of these payments there is no net loss of income for the Applicant for that period. In a note attached to the Application to the CICB for loss of income, the Applicant indicated that he was unable to return to work due to the daily challenges in caring for his niece, taking her to appointments, and helping her deal with the trauma. The child is in school full time but continues to receive counseling. The Applicant's spouse is not working at this time and assists with her care.

Compensation

Pain and Suffering

26In assessing the claim for pain and suffering arising from nervous shock, I have considered the proximity factors outlined above. I find on a balance of probabilities that the Applicant suffered nervous shock as a result of attending the scene, being advised of the homicide and attending the neighbour's home and seeing the blanket covering his sister in the backyard of her home, all while trying to support her daughter who had witnessed the murder and spent the night in the home with the Offender after her mother was killed.

27The Applicant described being in a state of shock and disbelief. He said he felt really lost, and distanced himself from his spouse. He has intrusive memories of the scene and nightmares relating to her murder. I am satisfied these injuries relate to the nervous shock he suffered. He has been prescribed with medical marijuana to help deal with insomnia following the murder.

28The Applicant continues to suffer from depression as a result of losing his sister and the stress of trying to parent and support her traumatized daughter. He has not received medication for the depression. He hopes to get further counseling to address it. On the evidence before me it would appear that there are a variety of causes contributing to the Applicant's ongoing depression, some of which may relate to the nervous shock he experienced, but most of which appear to relate to grief at the loss and companionship of a beloved sister and the demands of dealing with her daughter.

29After considering the circumstances leading to the Applicant's nervous shock and the medical evidence, I believe that an award of $7,000.00 for pain and suffering is reasonable.

Income loss

30The Applicant must provide reliable evidence to support his claim for income loss as a result of his inability to work. As indicated, his work was seasonal, and he was not working at the time of his sister's death. He received income and parental leave benefits as outlined above up to December 3, of 2017, almost 11 and a half months after his sister's death. While the Applicant continues to suffer from depression, given the medical report and the therapy report filed, it would appear that the ongoing depression is largely related to his sister's absence from his life and the challenges of caring for her traumatized daughter. In the circumstances, given that the evidence indicates other factors have contributed to the Applicant's overall emotional difficulties I find it reasonable to award a contribution to loss of income in the amount of $2,000.00.

Counselling/Therapy

31The CICB authorizes up to $2,400.00 (exclusive of tax) for counselling expenses to be paid directly to a qualified treatment provider upon receipt of a curriculum vitae outlining the credentials of the service provider and the required verification form. 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. The therapy sessions must be completed within 36 months of receiving this Decision. The 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.

Award

32The CICB orders compensation as follows:

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

Subsection 7(1)(a) Future Pre-Authorized Expense $ 2,400.00

Subsection 7(1)(b) Income Loss $ 2,000.00

Total Award (and Costs) $ 11,400.00

Less: Preauthorized treatment costs $ 2,400.00

Total Current Award $ 9,000.00

Payment

33The CICB orders the following be paid immediately to:

Applicant $ 9,000.00