(Re) 1906-03022, 2021 ONCICB 2

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: David Fine

Date: January 26, 2021

Indexed as: (Re) 1906-03022

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 compensation for pain and suffering, income loss, treatment and medical expenses and travel costs.

Decision

2In accordance with the Compensation for Victims of Crime Act, RSO 1990, c.C24, as amended (CVCA), the CICB denies the Application. The reasons for this Decision follow below.

Hearing

3The Applicant appeared by teleconference and provided oral testimony and submissions. His grandson was present at the hearing for support but did not give any evidence.

Evidence

4According to the Applicant his common law wife (“wife”) was stabbed to death in her apartment in February 1999 by her partner at the time (“the Offender”). The Applicant and his wife lived together for about eighteen years. They had three children together. About five years before the incident the Applicant’s wife left him to live with the Offender. The Applicant obtained custody of their three children and moved to a different city about a year after the separation. He became the primary caregiver of the children. His wife visited him and the children infrequently. The Applicant last saw his wife was about a year before the incident. According the police summary in the file the Offender was arrested and was subsequently convicted of manslaughter.

5At about 1 a.m., the day after the incident, two policemen came to the Applicant’s residence and advised him that his wife had been stabbed to death. Although a police summary indicates that the keys to the wife’s apartment were not turned over to her family until nineteen days after the incident when the investigation was completed, the Applicant stated that is not correct. He could not explain how he obtained keys to the apartment, but he testified that about five or six days after the incident he and his sister-in-law attended the apartment to carry out the usual obligation of family members to deal with a deceased’s possessions. At that time, he observed blood on the walls and floor. He was surprised that the apartment had not been cleaned by either the police or landlord. The Applicant stated that he was at the apartment for about one hour.

6The Applicant did not have to identify the body of his wife as that was done by her parents. The first time he saw the body was in an open casket at the funeral about a week after the incident.

7As a result of being informed of the death of his wife and attending the crime scene five or six days after the incident the Applicant stated he developed symptoms of depression, anxiety, difficulty sleeping, anger, and grief almost immediately which have lasted until the present.

8The Applicant did not seek any formal counselling until September 2016. According to a therapy report dated August 7, 2020 he had seven sessions with a social worker from September 2016 to February 2017 and eight sessions from February 2020 to March 2020. […]. When he was asked why he waited so long before seeking help, the Applicant indicated that he wanted to appear strong to his children and wanted to focus on their care. From time to time he has been given prescriptions for Xanax, Lorazepam and Medical Marijuana to help control his symptoms.

9The Applicant did not produce any detail or documentation with respect to his claims for income loss and expenses.

10The Applicant submitted that as a result of hearing about the death of his wife on February 1999 and attending the apartment where the murder occurred five or six days later he is entitled to compensation as he meets the test for being a victim of a crime of violence who suffered from mental or nervous shock.

Analysis

Crime of Violence

11For the Applicant to be compensable under the CVCA, he must prove, on a balance of probabilities that his wife was a victim of a crime of violence and that he meets the legal test for a mental or nervous shock claim.

12A conviction is conclusive evidence that a crime of violence occurred. Further, it is clear that she succumbed to her attack. The Applicant’s wife was a victim of a crime of violence.

13In order for the Applicant to be entitled to compensation for mental or nervous shock he must meet the test set out in Ulmer v. Weidmann, 2011 BCSC 130 (Ulmer), which was cited with approval in Wilson v. Criminal Injuries Compensation Board, 2015 ONSC 7876 (Wilson).The Applicant must show the existence of all three proximity factors set out in Ulmer as follows: 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 its immediate aftermath) and temporal proximity (the relation between the time of the incident and the onset of mental symptoms).

14In this case I find the Applicant does not meet the proximity factor of being at the scene of a shocking event and observing it or its immediate aftermath. He did not see the event or its immediate aftermath. Being informed of the event by the police officers does not meet that criteria required for a mental or nervous shock claim (see F.K. v. Criminal Injuries Compensation Board, 2010 ONSC 5468). On the evidence before me I cannot determine if the Applicant attended the crime scene nineteen days after the crime occurred or five or six days later. However, it does not make any difference. The attendance at the crime scene in either case to carry out the usual obligation of family members to deal with a deceased’s personal property does not meet the proximity factor of being at the scene of a shocking event or its immediate aftermath.

15Given that the Applicant is unable to prove on a balance of probabilities that he meets the test for a mental or nervous shock claim set out in Ulmer and Wilson, the Application is dismissed.

16In making this finding, I am not diminishing in any way the great suffering the Applicant has experienced. I am bound by the law in relation to claims for mental or nervous shock.

17Accordingly, this application is dismissed.