(Re) 1512-01707, 2020 ONCICB 28

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Lisa Barazzutti

Date: December 14, 2020

Indexed as: (Re) 1512-01707

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 compensation: mental or nervous shock, bereavement counselling, burial expenses, legal fees, and loss of financial support for the deceased victim’s minor children.

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 $69,657.00 and periodic payments. The reasons for this Decision follow below.

Hearing

3The Applicant appeared by teleconference and provided oral testimony. Her counsel provided closing submissions and participated in the hearing.

Evidence

4On [...], the Applicant’s spouse was killed as a result of an altercation with three individuals. He was stabbed to death and succumbed to his injuries at the scene. The Applicant testified that she was notified by a neighbor of what had happened and attended at the scene. The Applicant saw her spouse who was lying on the ground deceased.

5As a result of the police investigation, charges were laid against three individuals. One of the individuals was charged with manslaughter while the other two persons were charged with assault causing bodily harm and aggravated assault respectively.

Analysis

Crime of Violence

6One individual was convicted of manslaughter while the other two persons were convicted of assault causing bodily harm and aggravated assault.

7Section 11 of the CVCA provides that proof of conviction shall serve as conclusive evidence that the offence has been committed.

8I find that the Deceased was a victim of a crime of violence as evidenced by the murder.

Injury

9To determine whether the Applicant is compensable as a victim of a crime of violence, she must be able to prove, on a balance of probabilities, that she suffered the injury known as mental or nervous shock. For the reasons that follow, I find this to be the case.

10Under 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 or 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.

11A 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.

12In applying the test to the facts of this case, the CICB is satisfied that the Applicant witnessed the immediate aftermath by arriving upon the crime scene after her spouse had been murdered. She saw her spouse’s lifeless body. She was in a close personal relationship to the Deceased as he was her spouse and father of her children. Her emotional injuries as outlined in the therapy report filed by the Applicant are far beyond simple emotional upset. By meeting all the criteria as set out above, the Applicant has established that she suffered the injury known as mental or nervous shock. Accordingly, this portion of the Applicati[on] is granted. Given the nature of the incident and the fact that the Applicant’s spouse was murdered, compensation shall be granted to the Applicant in the amount of $5,000.00 for mental and nervous shock.

Compensation

Counselling/Therapy

13The CICB understands the emotional impact that the violent death of a relative can have on surviving family members. There can be no question that family members and other loved ones can experience intense distress, trauma and grief from the tragic death of a victim through violence.

14To assist in addressing the grief and distress associated with this loss, the CICB awards $3,000.00 for future bereavement counselling expenses. This amount will be paid out directly to the Applicant. The Applicant can utilize these funds to pay for her future bereavement counselling costs.

Burial Expenses

15The Applicant filed with her Application a receipt for the tombstone that she paid for in relation to the burial of the Deceased victim in the amount of $2,257.00. Accordingly, the CICB awards to the Applicant the sum of $2,257.00 for that expense.

Legal Fees

16Pursuant to section 22 of the CVCA, the CICB orders payment in the amount of $400.00 to the legal representative for the Applicant for legal fees.

Support for Minor Children of Deceased Victim

17Based on the documents on file and the oral testimony at the hearing, I am satisfied that it would be reasonable and appropriate to award support to the Applicant for the Deceased’s children.

18The Applicant testified that the Deceased, who was Aboriginal, provided monetary support for her children monthly. For a period of time he was employed by [...] but on the off season, he worked closely with his father cutting trees to supply firewood for sale on the First Nations reserve where they all resided. The harvesting of trees for firewood was a traditional practice that the Deceased victim undertook in order to help his father and the families on the reserve. The Applicant testified that on average, a cord of wood would be sold by the Deceased victim for $200.00 a cord. The Applicant further testified that the Deceased victim would provide $1,000.00 a month in support to the Applicant and children which came from either the traditional practice of harvesting and cutting wood for sale and the employment that the Deceased victim had with [...]. As the Deceased resided on the reserve, he was not under an obligation to file tax returns annually.

19The Applicant advised that she was denied the CPP death benefits for her children and therefore was not receiving any monies for support from any third-party entity.

20It is the CICB’s practice to estimate a requirement of $750.00 per month to support a single child. In accordance with subsection 19(1)(b) of the CVCA, the maximum amount the CICB may award is $1,000.00 per month in this respect. Accordingly, the maximum allowable compensation for periodic payments is $1,000.00 for all of the children.

21In accordance with subsection 17(3) of the CVCA the CICB must take into consideration any benefit or compensation received by the Applicant from any other source. In this case, there is no such benefit or compensation.

22In the CICB’s view, it is appropriate under the circumstances to make an order to the Applicant for support costs for the Deceased’s four children in the amount of $1,000.00 which represents the maximum allowable periodic payment for all of the children. The CICB will also award this monthly amount retroactively from the month after the Deceased’s death. [...]. This amount will be paid out directly to the Law Firm in trust for the Applicant. [...].

23The CICB notes that periodic payments for dependency shall cease for each child when that child turns 18 years of age.

24The Applicant is required to notify the CICB of any change in circumstance, including a change in the primary residence of either child.

25In closing, please accept the CICB’s deepest condolences for your loss.

Award

26The CICB orders compensation as follows:

Subsection 7(1)(a) Expenses – Counselling

$ 3,000.00

Subsection 7(1)(a) Expenses – Funeral Expenses

Subsection 7(1)(c) Expenses – Dependent Support

Subsection 7(1)(d) Pain and Suffering

Section 22 Cost: Legal fees contribution

Total Current Award:

$ 2,257.00

$ 59,000.00

$ 5,000.00

$ 400.00

$ 69,657.00

Payment

27The CICB orders the following be paid immediately to:

Law Firm in trust for Applicant

$ 69,657.00

Applicant

Periodic payments of $750.00 per month to be paid on the first day of each month, pursuant to Section 7(1)(c) of the CVCA effective October 1, 2020 to [...]