Update: see previous posts April 11, 2011 The Vulnerable Victims and Family Fund, April 10, 2011 Victim Fine Surcharges – $41 Million Collected by Ontario in 2009/10, March 15, 2011 Criminal Injuries Compensation Act
Victims of Crime were not being assisted by the Provincial Board appointed to do so and as a result, the Ontario Provincial government has created a program, called the “Financial Assistance for Families of Homicide Victims” from the “The Vulnerable Victims and Family Fund” created April 10, 2011.
The legislation designed to provide compensation and relief for the victims of crime was the Compensation for Victims of Crime Act
The Ontario Provincial government board that was put into place to help victims, is the Criminal Injuries Compensation Board.
The Criminal Injuries Compensation Board (the “Board”) interprets the Compensation for Victims of Crime Act. If a parent’s son or daughter was brutally slaughtered and murdered and their parent didn’t witness or hear this murder or personally see or hear the aftermath of the muder by walking in after the fact, the Board refused to compensate these parents.
The Board applies a “balance of probabilities” standard of proof to victims and applies a very high threshold for proving mental or nervous shock.
The Board denied a number of claims and refused to assist the grieving victims (the parents) based on the legal definition of “nervous shock”, confirmed by two Superior Court decisions in 2010 (see K. v. Criminal Injuries Compensation Board, 2010 ONSC 5468 released October 6, 2010 and Centen v. Criminal Injuries Compensation Board, 2010 ONSC 6963 released on December 17, 2010).
In K. v. Criminal Injuries Compensation Board, the Superior Court stated the following:
The Divisional Court has jurisdiction to hear matters pursuant to s.23 of the Compensation for Victims of Crime Act, which provides that:
“Subject to s.25 a decision of the Board is final except that an appeal lies to the Divisional Court from any decision of the Board on any question of law” and;
The common law test for the compensable legal injury of nervous shock is discussed extensively in the case of Dubé (Litigation Guardian of) v. Penlon Ltd.) (1994) Carswell Ont. 931 (Gen. Div.). As set out at paragraphs 135 to 145 of that decision, in order to recover for nervous shock, four criteria must be satisfied. One of those criteria is the criteria known as “proximity”. In paragraph 144 of Dubé that criteria is described as follows:
“It is necessary that the claimant see or hear the accident or event or its immediate aftermath and suffer nervous shock as a result. No liability is imposed for nervous shock suffered by someone who is simply told about or informed of the accident.”
See the Board’s description of Compensation for Death.
So many victims of crime have been denied justice, that the Ontario government has decided to create a program called the Financial Assistance for Families of Homicide Victims. This creation of this assistance scheme amounts to an admission that the Board has failed and has left families in need.
To ensure that the Board can’t deny assistance to future victims facing the same set of circumstances, relying on the high thresholds defined by the Courts, the Ontario Provincial government will do away with the need of a doctor’s certificate verifying nervous shock.
In the meantime, a review of Compensation for Victims of Crime Act is underway, and the new program will give up to $10,000 to eligible families of murder victims who died after Jan. 1 2006.
On April 15, 2011 the province announced (during National Victims of Crime Awareness Week, April 10 – 16, 2011) a related fund of $900,000 dedicated to cover costs of victim’s families attending trials.