(Re) 1904-01754, 2020 ONCICB 13

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Lisa Barazzutti

Date: June 16, 2020

Indexed as: (Re) 1904-01754

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 the following forms of compensation: mental and nervous shock, bereavement counselling, loss of financial support and reimbursement for past therapy expenses.

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 $22,504.80. The 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 in her written Application to the CICB explained that in [...], the Offender (who is the son of the Applicant) suffered a psychotic episode and attacked the Applicant’s spouse. The Applicant was present when the attack occurred and witnessed her spouse being attacked by the Offender. The Applicant’s spouse sustained serious head injuries which resulted in him being in a vegetative state and succumbed to his injuries two years later.

5The Applicant filed in conjunction with her claim some of the court file for the criminal case involving the Offender. The Offender was charged with attempted murder, assault with a weapon and aggravated assault. At trial, the Offender was found to have been not criminally responsible for the attack on his father.

Analysis

Crime of Violence

6There was no conviction in respect of the incident. The Alleged Offender was found to be not criminally responsible after a trial.

7Section 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 death.

8The Applicant is required to prove, on a balance of probabilities, not only that she was a victim of a crime of violence but also that the primary victim’s death resulted from the crime.

9I find the Applicant’s spouse was a victim of a crime of violence because the police records and court records on file along with the written statements of the Applicant, confirm that the Victim was attacked by the Offender who was in a psychotic state at the time and who caused the injuries which resulted in the victim succumbing to his injuries. The court found the Offender had committed the offence of aggravated assault but that because of his mental illness he was held to be not criminally responsible.

Injury

10As a result of the physical assault on the victim, the victim was in a vegetative state. He remained in the hospital until he finally succumbed to his injuries in June 2018.

Mental or Nervous Shock

11Under the CVCA, an individual, who is not the direct recipient of violence, may be eligible for compensation where the individual is able to establish that he or she has sustained the injury known as mental or nervous shock. Mental or nervous shock is a legal term, rather than a medical diagnosis. The legal test for mental and nervous shock, 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, is as follows:

…the following elements of the cause of action for nervous shock have been established:

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 the relational proximity (the closeness of the relationship between the claimant and the victim of the defendant’s conduct), 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 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.

12A diagnosis of mental injury is not required. In Saadati v. Moorhead, 2017 SCC 28 the Supreme Court of Canada found that there must be evidence to show that the disturbance is serious and prolonged and rises above the ordinary annoyances, anxieties, and fears that come with living in a civil society.

13In applying the test to the facts of this case, the CICB is satisfied that the Applicant witnessed the violent occurrence, was in a close personal relationship with the deceased who was her husband and suffered emotional distress as a result of the death of the victim. The Applicant filed a therapy report in support of her claim which confirmed the emotional injuries that the Applicant sustained as a result of having witnessed the attack upon her husband by her own son, having to watch her husband being attacked by her son and sustained significant head injuries.

14The CICB is satisfied that all the required criteria for MNS have been met and the CICB therefore finds that the applicant suffered the injury known as mental or nervous shock and is compensable.

Compensation

Pain and Suffering

15In assessing the claim for pain and suffering the CICB considered the horrific nature of the incident for which the Applicant witnessed and the fact that her husband eventually died as a result of these series injuries.

16The maximum allowable award for pain and suffering is $5,000.00 pursuant to section 19(6) of the CVCA which states:

19(6) The amount awarded by the Board to be paid in respect of pain and suffering shall not exceed $5,000.

17As a result, the CICB awards the Applicant the sum of $5,000.00 for pain and suffering.

Expenses and Loss of Financial Support

18The Applicant must provide reliable evidence to support the claims for:

• expenses actually and reasonably incurred as a result of injury

• loss of financial support

19The Applicant's claim for expenses is granted. The Applicant filed several receipts with respect to past therapy expenses relating to physiotherapy, counselling and massage therapy. After reviewing these receipts and after factoring in any insurance coverage for such expenses, the CICB shall award the sum of $2,504.80 to the Applicant.

Counselling/Therapy

20The CICB will award the Applicant $3,000.00 which the Applicant can use for future therapy sessions and which shall be awarded to the Applicant directly.

Loss of Financial Support

21The Applicant filed with her claim, correspondence from her husband’s employer confirming that he had accepted a one-year contract of employment which paid $150,000.00 (gross) for 2017.

22Section 17(3) of the CVCA requires that the CICB take into account any benefit, compensation or indemnity paid or payable to the Applicant from any source. The CICB has considered that the deceased victim was in receipt of CPP disability benefits in the amount of $1,333.36 per month for 2017 and that the deceased upon his death had a life insurance policy payable to the Applicant in the amount of $75,000.00.

23The CICB’s practice is to consider that the deceased would have utilized approximately 20% of his income for his own personal use. The CICB also has factored in the fact that the deceased prior to his death had qualified to receive the CPP disability benefits in the amount of $1,333.36 per month in 2017 and that the Applicant was paid the sum of $75,000.00 from the deceased’s insurance policy. Having considered these benefits and deducting them from the deceased’s potential income for 2017, there still remains a significant loss of financial support for the Applicant. The evidence filed in conjunction with the claim revealed that the deceased victim was gainfully employed and paid most of the family household expenses. The CICB’s usual practice is to consider $1,000.00 per month with respect to the loss of financial support from a spouse and having found no reason to deviate from that practice, the CICB shall award the Applicant the sum of $12,000.00 as a lump sum payment for the loss of financial support. The deceased had an employment contract for a period of one year. Therefore. the CICB calculates this award to be $1,000.00 per month for a period of twelve (12) months.

24In closing, please accept the CICB’s deepest condolences for your loss.

Award

25The CICB orders compensation as follows:

Subsection 7(1)(a) Expenses

$ 2,504.80

Subsection 7(1)(a) Expenses

$ 3,000.00

Subsection 7(1)(c) Dependency Expenses

$ 12,000.00

Subsection 7(1)(d) Pain and Suffering

$ 5,000.00

Total Award (and Costs)

$ 22,504.80

Payment

26The CICB orders the following be paid immediately to:

Applicant

$ 22,504.80