Simon's Megalomaniacal Legal Resources

Criminal Injuries Compensation (Ontario)
Legal Guide

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Ch. 9 Compensation (01 January 2015)

1. Overview
   
2. Crime of Violence or Law-Enforcement Causation
   (a) Overview
   (b) Causation
   (c) "Crime of Violence"
   . What Are "Crimes of Violence"?
   . Motor Vehicle-Related Claims
   (d) "Law Enforcement" Causation
   . Overview
   . "Arrest"
   . "Aiding Peace Officer"
   . "Preventing Offence"
   (e) Misleading Application Form
   
3. Injury or Death
   (a) General
   (b) Mental or Nervous Shock
   . General
   . Evidence
   . Board Policy
   . Comment
   
4. Types of Compensation (Heads of Damage)
   (a) Overview
   (b) "Disbursements" [CVCA s.7(1)(a)]
   (c) "Pecuniary Loss" [CVCA s.7(1)(b,c,f)]
   (d) "Pain and Suffering" [CVCA s.7(1)(d)]
   (e) "Child of Rape" [CVCA s.7(1)(e)]
   (f) "Other Losses and Expenses" [CVCA s.7(1)(f)]
   (g) Law Enforcement Claims - Common Law Damages
   
5. Payment of Compensation
   (a) Lump Sum and Periodic
   (b) Payment Terms and Conditions
   (c) Awards to Vulnerable Persons
   (d) No Attachment of Awards
   (e) Cashing Award Cheques
   
6. Amount of Compensation
   (a) Overview
   (b) Contributing Behaviour
   . Overview
   . Board Practice
   . Case Law
   (b.1) Subsequent Behaviour
   (c) Collateral Benefits
   . Overview
   . CICB Treatment
   . OW and ODSP Treatment
   . "Other" Collateral Benefits
   (d) Maximum Awards
   . Overview
   . Maximum Award per Victim
   . Maximum Total Awards per "Occurence"
   . Case Law
   (e) Board Practice
   
7. Interim Compensation
   (a) Overview
   (b) Evidence Assistance
   
8. Civil Damage Claims
   (a) Overview
   (b) "Subrogation"
   (c) Re-Payment to Board from Civil Judgments
   
9. Criminal Restitution Orders

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1. Overview

Compensation may be paid to a person injured or killed as a result of a "crime of violence" or in the course of certain "law enforcement" activities. For explanations of the categories of applicants, see the topic "Applicants" in thechapter "Parties and Participants".

"Injury" include "mental or nervous" shock as well as physical harm, it does not include property damage.

While the types of compensation are set out in the Compensation for Victims of Crime Act (CVCA) in its own language they generally correspond to the same types of damages that would be available at common law in a civil lawsuit. However the Board almost always awards significantly smaller amounts of "damages" compared to a civil court. In addition, most claims (except those in "law enforcement" cases) are subject to gross maximum award "caps".

Some factors that the Board can consider (at their discretion) when determining the amount of an award (and indeed, whether to grant an award at all) include: the behaviour of the victim in contributing to the harm and in co-operating with law enforcement, and available "collateral benefits" (other sources which might duplicate compensation).

In some cases, interim compensation may be awarded before a final Board decision.

Awards to may be subject to terms and conditions as to use, and awards to vulnerable people may be made to others (fiduciaries) on their behalf.

Awards may be varied at any time in the future on fresh evidence or a change of circumstances of the parties. For a discussion of this see the topic "Variation Reviews" in the chapter "Reviews and Appeals".

Claimants and recipients of CICB awards do not lose their right to sue an offender - but if they do they may have to reimburse the Board for any compensation award. The Board has a "subrogated" right to sue the offender itself.


2. Crime of Violence or Law-Enforcement Causation

(a) Overview

Injury or death caused by a "crime of violence" or certain law enforcement activities is compensable under the Compensation for Victims of Crime Act (CVCA).

By far the majority of these cases involve the direct intended victims of crimes against the person such as assault (common, domestic and sexual) and homicide. Compensation for harm caused during other crimes and law enforcement activities is much less common.

(b) Causation

For an injury or death to be compensable, it must be caused by the "act or omission" of another person in Ontario which "occured in or resulted from" [CVCA s.5]:

Crimes of Violence (these include, but are not limited
to):

• poisoning,
  
  
• arson,
  
  
• criminal negligence and
  
  
• s.86 offences [some firearms offences], including assault by a motor vehicle but excluding any other offences involving the use or operation of a motor vehicle

Law Enforcement

• the lawful arrest or attempted arrest of an offender or suspected offender for an offence against someone other than the applicant or their dependents, or their property;
  
  
• assisting a peace officer (as defined in the Criminal Code [CVCA s.1]) in the execution of their law enforcement duties;
  
  
• preventing or attempting to prevent the commission of an offence or suspected offence against someone other than the applicant or their dependents, or their
  property.

Case Note: Dekany v. Criminal Injuries Compensation Board (Div Ct, 2013)
In this case the Divisional Court engaged in an interesting consideration of causation-in-fact, and the application of the common law 'thin-skull' rule (that a tortfeasor is liable for the full resultant injury to a plaintiff even if their contribution exacerbated pre-existing conditions) to the CVCA context.

(c) "Crime of Violence"

. What Are "Crimes of Violence"?

As can be seen from a quick review of the s.5 CVCA "list" set out in sub-section (a) above, it is silent on primary "crimes of violence" such as assault and murder. As such the list cannot be taken as exhaustive and exclusive.

Judge Watt in Pitters v CICB (Ontario) OJ #4339 (QL) (Div Ct, 1996) comments
on this and what constitutes a "crime of violence":

In the definition section of the Act, section 1, the legislature could have defined "crime of violence" in exhaustive or expansive terms. It did not do so. It could have included a list of Criminal Code offences which, if proven on a balance of probabilities, constitute a "crime of violence". It chose not to do so. The meaning of "a crime of violence" must be ascertained from s. 5(a) of the Act, and the general principles of statutory construction.

In the Pitters case the Board initially denied benefits to a claimant injured in the course of a shooting because it was held to be "accidental". However a conviction was registered for "possession of a prohibited weapon". An appeal was allowed by the Divisional Court on the basis that even an accident could constitute an element of a conviction for a criminal offence. In this case the offender could (but was not) have been convicted of the related offence of careless handling of a firearm [s.86(2) CC] - which is an enumerated firearms offence under s.5 (CVCA).

Note:
Keep in mind that criminal CONVICTION is not necessary for CICB purposes [CVCA s.16(1)] (this issue is discussed under "Evidence of Crime" in the chapter "Evidence"].

The 2002/3 Board Annual Report lists awards (and percentages thereof) based on the following categories of crimes:

Assault
(common, domestic and peace officer) 59.25%

Death
(murder and criminal negligence causing) 5.85%

Sex-Related
(adult, child, historical) 32.44%

Other
(arson, robbery, criminal harassment) 2.46%

This list - like the s.5 list - is not exhaustive of the crimes which might trigger compensation eligibility. Claimants and their counsel should always examine their facts from first principles of language usage.

. Motor Vehicle-Related Claims

Section 5 of the CVCA states that a crime of violence EXCLUDES:

... an offence involving the use or operation of a motor vehicle other than assault by motor vehicle.

This limits motor vehicle related claims to assault claims involving a motor vehicle (eg. trying to run someone down).

The Board has issued a "Fact Sheet: What Items are Not Compensated" (01 Feb 2006) which lists amongst items not compensated:

An accident involving a motor vehicle (ie. drunk driving or hit and run).

This statement, while largely accurate, is nonetheless misleading as it does not clarify the situation where the vehicle is the instrument of an assault. As well, if an innocent bystander was "accidentally" injured in the course of an assault using a motor vehicle then the reasoning in the Pitters case would likely apply to render that victim eligible for compensation.

(d) "Law Enforcement" Causation

. Overview

As mentioned above, compensable injury or death may also be caused by the "act or omission" of another person in Ontario which "occured in or resulted from" [CVCA s.5]:

• "lawfully arresting or attempting to arrest an offender or suspected offender for an offence against a person other than the applicant or his or her dependant or against such person's property"; [CVCA s.5(b)] ["Arrest"]
  
  
• "assisting a peace officer (as defined in the Criminal Code [CVCA s.1]) in executing his or her law enforcement duties;" [CVCA s.5(b)] ["Aiding Peace Officer"]
  
  
• "preventing or attempting to prevent the commission of an offence or suspected offence against a person other than the applicant or his or her dependant or against such person's property" [CVCA s.5(c)] ["Preventing Offence"]

Compensation awards in "law enforcement" claims (see "Law Enforcement Causation" (above) are more expansive than in other cases. "Law enforcement" awards for injury or death are NOT subject to the "Maximum Awards" caps (see that topic, below) [CVCA s.19(5)]. Further, "law enforcement" awards for injury (NOT death) may include - in addition to the generally-available awards under s.7(1) CVCA (these are explained in "Types of Compensation, below) - additional "common law" damages (also explained below under "Law Enforcement Claim - Common Law Damages") [CVCA s.7(2)].

Again, these provisions are much less used than the main "crime of violence" category, and seem to be used by police officers much more than civilian "Good Samaritans" (distinguish these "Victim" Good Samaritans from "After-the-Crime" Good Samaritans discussed in the chapter "Parties").

An emphasis on "crimes of violence" as the main causal trigger for compensation may have contributed to misunderstanding of the nature of these "law
enforcement" provisions.

. "Arrest"

This provision covers injury or death caused during the lawful arrest or attempted arrest of an offender or suspected offender for an "offence against a person". It EXCLUDES situations where that "person" is the applicant or their dependent, or where the offence is against "such person's property".

Unlike CVCA s.5(a) ("crimes of violence"), this provision does NOT explicitly mention that the underlying offence for which an arrest is being attempted is a "Criminal Code" offence. Neither does it expressly provide that the victim attempting an arrest be a "peace officer".

While less usual, arrests may be conducted for non-Criminal Code offences under such Acts as the Provincial Offences Act [s.144-147] (by both peace officers and civilians) and otherwise under the federal Contraventions Act [s.5,7] and the wide range of non-Criminal Code federal offences to which it applies.

That said, the underlying offence must still be one "against a person". There are two points to make regarding this:

• Firstly, recall that the Pitters case (discussed above), broadens causation to "accidents" - as long as they occur in the commission of an offence. Under this provision injuries or death caused as a result of ANY offence (not just Criminal Code offences) are covered.
  
  
• Secondly: this "Arrest" provision [part of CVCA s.5(b)] expressly EXCLUDES from its coverage situations where the underlying offence grounding the arrest attempt is one "against a person other than the applicant or his or her dependant or AGAINST SUCH PERSON'S PROPERTY" [emphasis added]. It is a standard principle of Statutory interpretation ("implied exclusion") that when a statute excludes a thing in one context, but does not do so in a second, that it means to include it in the second: expression unius est exclusio alterius. Thus the underlying "offence against a person" for which an arrest is attempted, appears to include offences against the victim's PROPERTY. This interpretation significantly increases the victim coverage of this provision for the circumstances in which injury or death occur (though not for property compensation, of course).

These comments apply equally to the discussion of "Preventing Offence", below.

. "Aiding Peace Officer"

This provision is very broad. It only requires that the injury or death occur as a result of assisting a peace officer in executing his or her law enforcement duties.

Unlike the provisions regarding "Arrest" (above) and "Preventing Offence" (below) it requires NO UNDERLYING OFFENCE WHATSOEVER - be it Criminal Code or not.

Neither does it require that the victim attempting an arrest be a "peace officer" - only that they be "ASSISTING a peace officer in executing his or her law enforcement duties".

While it is plain that "law enforcement duties" includes direct enforcement with respect to any offence, it could conceivably include the carrying out of ANY law enforcement duty. It is a term as broad as the imagination of the claimant's lawyer, and it is not an area that has been explored in the case law. Arguably, a person injured in any way in assisting a peace officer in their most mundane of tasks comes under this provision (eg. an officer waves me over to speak to me about an incident I have witnessed and I am struck by a car as I cross the road to meet her - why not?)

Further, I note that the CVCA [s.1] adopts the definition of "peace officer" from the Criminal Code [s.2]. While this might be thought to restrict the operation of this provision to situations of Criminal Code law enforcement, it actually does just the opposite. The Criminal Code definition (which is quite extensive) is broad enough to encompass just about any category of law enforcement officer in the country, including: mayors, warden, reeves, sheriffs, justices of the peace, corrections officers, all manner of police officers, customs and immigration officers, pilots, military policemen and "fishery guardians".

Needless to say, this wide list greatly expands the conventionally understood range of the Criminal Injuries Compensation Act.

. "Preventing Offence"

This provision requires that the injury or death occur as a result of "preventing or attempting to prevent the commission of an offence or suspected offence against a person other than the applicant or his or her dependant or against such person's property" [CVCA s.5(c)].

Several of the comments made in the above discussed regarding "Arrest" also apply in situations of "preventing offences" (see these discussions above), including:

• while this provision does require an "offence against a person", it does not require that the offence (or suspected offence) be one under the Criminal Code;
  
  
• that an "offence against a person" may include a property offence (though again this only expands who might be a "victim", it does not create any new entitlements to compensation for property damage).
  
  
• that it can cover "accidents" as long as they are constituent elements of the "offence" [Pitters] (many of not most regulatory offences are "strict liability" or "negligence" offences).

(e) Misleading Application Form

An application for compensation involves a number of Board-designed forms, the main one of which is the "Primary Information" form.

The very first item on this form asks the applicant to check-off the "type of injury (please check one)" from five options. The options listed are:

• assault
  
• sexual assault
  
• injury causing death
  
• nervous shock
  
• injury (police officer)

This is a problem to start with because what is actually suggested in the options is not the "type of injury" so much as an odd (and incomplete) mixture of "type of injury" and "type of crime".

Left off this list are all manner of physical injuries - which is the first thing most applicants would want to indicate once being prompted as to "type of injury". Civilian "Good Samaritan" claims are not mentioned at all while "police officer" claims are (and as per above, it should be the much broader "peace officer"). Presumably most physical injuries are meant to be covered under "assault" - even though physical injury can be caused by any of several other CVCA-covered "crimes of violence": including robbery, arson, poisoning, criminal negligence causing bodily harm and firearms offences [CVCA s.5].

If this portion of the form proves a problem, perhaps the best response to this difficulty is to briefly annotate the form in the margin as to type of injury and crime alleged and then "see page 3" to refer the reader to the later "Details" sections at p.3 - where the applicant is asked to explain the incident and the injury in detail.

We can only hope that these discussed categories do not correspond to MANDATORY categories in the Board's computer system. See the discussion "Does the Computer Tail Wag the Legal Dog?" in the chapter "Questionable Board Practices".


3. Injury or Death

(a) General

"Injury" means actual bodily harm and includes pregnancy and mental or nervous shock [CVCA s.1]. It does not include property loss.

In all cases but the most obvious cases (perhaps amputations) - injury will have to be demonstrated on the medical evidence, which includes psychiatric evidence. "Bodily harm" need not be restricted to traumatic injury but could extend to contracting communicable diseases.

(b) Mental or Nervous Shock

. General

The term "mental or nervous shock" is included in the definition of "injury" is s.1 of the CVCA.

It is a legal term, not a medical diagnosis. It corresponds to the same concept used in tort law (eg. negligence) cases where a person is exposed to events so traumatic that they require medical (psychiatric) care for conditions such as post-traumatic stress disorder (PTSD) or reactive depression. The Board has adopted this "common law" meaning as evolved by the courts: "Fact Sheet" entitled "Injury Known as Mental or Nervous Shock(April 2004).

The Diagnostic and Statistical Manual (Fourth ed.) (the "DSM-IV"), which is the psychiatric diagnostic authority, contains the actual diagnostic criteria for conditions such as PTSD.

Traumatic brain injury would probably qualify as both "bodily harm" more easily than as "mental or nervous shock", which tends to be used (though not exclusively) by the courts in situations of (witness trauma").

Some cases in which compensation for "mental or nervous shock" have been dealt with may be found in the Board's Annual Reports in their sample case summaries. These are selected cases and may not be representative.

Criminal Injuries Compensation Board website

Case Note: Dubé (Litigation Guardian of) v. Penlon Ltd. (1994) Carswell Ont. 931 (Gen. Div.)
This case, which I unfortunately do not have a copy of, has been cited by several cases on the issue of nervous shock. If anyone has access to it I would appreciate it being faxed to me at 416 850 3282. Thx.

Case Note: K v CICB (Div Ct, 2010)
In this case the court quoted from Dube (noted above) to the effect that "(i)t 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."

Case Note: Centen v CICB (Div Ct, 2010)
In this case the Divisional Court allowed an appeal against a CICB decision that had disallowed nervous shock compensation to someone was both a direct victim of the crime (arson) and who witnessed it's aftermath. The Board had relied on a policy directive that only those who witnessed crimes against third parties could claim compensation for nervous shock. The court however held that the common law definition of nervous shock (aka mental injury), for which it cited the case of Mustapha v. Culligan of Canada Ltd. (SCC, 2008), applied:

[16] The Supreme Court of Canada in Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 (CanLII), [2008] 2 S.C.R. 114 dealt with recovery for mental injury in a tort context. The Court held that recovery for mental injury is possible if it is reasonably foreseeable that a person of ordinary fortitude would suffer mental injury in the circumstances. It does not limit recovery to those situations where a person suffers nervous shock as a result of witnessing or learning about a violent crime committed against someone else. The Board’s guidelines appear to be premised on recovery for secondary victims only.

. Evidence

Like all injuries that are not obvious to everyone (eg. amputations) proving "mental or nervous shock" will require medical evidence. While the report of a GP doctor is acceptable, anyone seeking compensation for this category of injury is well-advised to obtain a psychiatric report if they can (the Board may provide financial assistance for such reports: see the chapter "Evidence").

. Board Policy

The Board's "Fact Sheet: Injury Known as Mental or Nervous Shock" (discussed below) sets out its policy on what constitutes "mental or nervous shock". Inflexible reliance by a presiding Board on such policies can be criticized and legally challenged under the doctrine of "fettering discretion" (see the discussion of "Fettering Discretion" in the chapter "Questionable Board Practices", especially the Leung and Myers cases).

The Board policy has set out in the "Fact Sheet" the following (mostly unobjectionable) factors that it will consider in such a claim:

• the degree of violence involved;
  
  
• the closeness of the relationship between the claimant and the person directly injured by the violence;
  
  
• whether the claimant was on the scene or came upon the scene;
  
  
• how the claimant learned of the occurence.

Some concerns and ambiguities exist with regard to the following:

• the "Fact Sheet" states that "the Board does not award compensation for the grief and sorrow which normally follow a death";
  
  
• the "Fact Sheet" characterizes "mental or nervous shock" as resulting from "extreme and unusual violence" and resulting in "severe psychological trauma".

These latter statements in the "Fact Sheet" tend to pre-judge and narrow what might properly be included within the legal concept of "mental shock". The common law of damages includes the concept of the "thin-skinned" plaintiff where people who are particularly susceptible to injury are still fully compensated (ie. a defendant's damages are not reduced to the level that a "normal" person would have suffered). Thus a "moderate" traumatic or violent episode involving a particularly vulnerable person (say someone with a pre-existing anxiety disorder) may legally result "mental or nervous shock" despite Board policy.

The same reasoning holds for grief reactions, which can vary from person to person. An elderly disabled parent who had great reliance on a deceased victim can naturally be expected to have a greater "grief and sorrow" response than a young independent sibling. These are matter for the members to decide on a case-by-case basis following the common law - not to be pre-determined by Board fiat.

. Comment

"Mental or nervous shock", particularly the diagnosis of "post-traumatic stress disorder" has had a difficult social and legal history in terms of recognition and acceptance in civil court and compensation schemes (both public and private). One example of this is its' military treatment: extending from the WW1 "diagnosis" of "shell-shock" (which was often dismissed as malingering) to the present-day widespread acknowledgement of "post-traumatic stress disorder" in modern western armies.


4. Types of Compensation (Heads of Damage)

(a) Overview

Types of compensation may be awarded as follows [CVCA s.7(1)]:

• Disbursements and expenses incurred or to be incurred [CVCA s.7(1)(a)] ("see below Disbursements");
  
  
• Pecuniary losses of the victim as a result of partial or total disability affecting the victim's capacity for work (employment or business income) [CVCA s.7(1)(b)]("see below Pecuniary Loss");
  
  
• Pecuniary (financial) loss incurred by dependents caused by the victim's death [CVCA s.7(1)(c)]("see below Pecuniary Loss");
  
  
• Pain and suffering [CVCA s.7(1)(d)] ("see below Pain and Suffering");
  
  
• Child of rape support [CVCA s.7(1)(e)] (see below "Child of Rape");
  
  
• Other Pecuniary loss resulting from the victim's injury and any expenses that, in the opinion of the Board, it is reasonable to occur [CVCA s.7(1)(f)] (see below "Other Losses and Expenses").
  
  
• Legal costs (see the chapter "Orders").

Compensation is not available for property loss.

(b) "Disbursements" [CVCA s.7(1)(a)]

These are "expenses actually and reasonably incurred or to be incurred as a result of the victim's INJURY OR DEATH". It does not include property loss resultant from any other aspects of crime, such as the theft accompanying robbery.

These include disbursements and expenses such as medical, dental or therapy expenses, ambulance fees, eyeglasses, travel expenses.

Also funeral and burial expenses (the Board caps these at $9,000 ["Fact Sheet: Important Information for Claims Arising from Homicide"). On the "cap" see "Fettering Discretion" in the chapter "Questionable Board Practices".

(c) "Pecuniary Loss" [CVCA s.7(1)(b,c,f)]

Note that "pecuniary loss" is mentioned in three separate section of CVCA s.7(1):

• of the victim as a result of partial or total disability affecting the victim's capacity for work; [CVCA s.7(1)(b)]
  
  
• dependent loss caused by the victim's death; [CVCA s.7(1)(c)]
  
  
• "other" pecuniary loss resulting from the victim's injury [CVCA s.7(1)(f)].

Despite any Board policies as to what this "pecuniary loss" constitutes, it is a term defined by the common law. Broadly, "pecuniary loss" at common law can be equated with financial loss such as loss of wages, business loss and devaluation or destruction of property. There is little scope however for including "property loss" compensation under this category as the property loss would have to be "incurred as a result of the victim's injury or death". This condition is much more likely to be met in claims for wage or business loss.

In the CVCA context, the meaning of the term "pecuniary" was considered in the case of Piukkala v CICB (Ontario) OJ #1150 (QL) (Div Ct, 1990). There the Divisional Court allowed an appeal from a Board's ruling that the applicant was not entitled to a pecuniary loss award on the death of the victim and substituted its own award at the maximum lump sum of $25,000 [CVCA s.19]:

It is our view that the Board adopted and applied an erroneous interpretation of the term "pecuniary loss", as that term is used in the Act. It is our opinion that in approaching its decision the Board should have taken into account the reasonable expectations of the applicant with respect to the income that would have been earned had the victim continued to live.

The case also held that the term "pecuniary loss" under the CVCA should have the same meaning as is applied in personal injury damages in the Family Law Act and at common law.

General principles of common law damages - including the meaning of "pecuniary" damages - are discussed at this link:

Small Claims Court Legal Guide: Ch.8, s.2(n): Pleadings: Principles of Pleadings: Pleading Damages
The Board's 2002/3 Annual Report states that it covers for "loss of wages generally to a maximum of $250/week". It makes no mention of any compensation for business loss, although the "Employment Form" inquires as to whether the applicant is "self-employed".

On the "cap" mentioned above, see the discussion of "Fettering Discretion" in the chapter "Questionable Board Practice".

(d) "Pain and Suffering" [CVCA s.7(1)(d)]

"Pain and suffering" compensation has the same meaning as "pain and suffering" damages under common law (eg. negligence). General principles of common law damages - including the meaning of "pain and suffering" damages - are discussed at the above link to the Small Claims Court legal guide.

The Board "Fact Sheet: What Compensation is Available to Me" (01 Feb 2006) states:

Pain and Suffering: may be awarded to a victim of a violent crime. Decisions are based on the degree of violence involved in the incident, the seriousness of the injuries sustained; the recovery period and the possibility of a continuing disability as well as other factors depending upon the case.

This quote misstates the law by mentioning "violent crime" only. Injury or death brought about by "law enforcement" activities (see above) is just as eligible for pain and suffering compensation.

Otherwise, the above list of factors is no better or worse than the considerations one would face with a civil court. The criteria for determining the quantum of "pain and suffering" damages at common law are notorious vague and uncertain. Courts tend to look for case law with similar facts and pick a dollar value close to them.

(e) "Child of Rape" [CVCA s.7(1)(e)]

I am unaware of any cases utilizing this provision. If there are they would certainly be candidates for maximum compensation and on-going periodic payments.

Any cases of this nature need careful consideration and full planning to ensure that its significant compensation potential is realized.

(f) "Other Losses and Expenses" [CVCA s.7(1)(f)]

This vague provision allows expenses to be compensated at the discretion of the Board but free of the requirement that the expenses be "incurred as a result of the victim's injury or death". It might be best suited to compensate an "After-the-crime Good Samaritan" (see that discussion in the chapter "Parties") for their expenses in coming to the aid of victims, or perhaps inconvenience and property damage for "Victim Good Samaritans" in law enforcement activities (see "Law Enforcement Causation", above).

Section 7(1)(f) also allows "other Pecuniary loss resulting from the victim's injury", even though loss of income and dependent pecuniary loss are already expressly covered. The only other category that I can think of under "pecuniary loss" would be property loss, but the persisting requirement that the loss 'result from the victim's injury' would appear to negate that possibility. It is possible that a fact situation might arise in which this provision may be given meaning but it escapes me at present.

Compensation under s.7(1)(f) is NOT AVAILABLE to "support-providers", "dependents" and "after-the-crime Good Samaritans" (see "Applicants" in the chapter "Parties and Participants") [CVCA s.5(f)].

(g) Law Enforcement Claims - Common Law Damages

Generally, compensation awards in "law enforcement" claims (see "Law Enforcement Causation" (above) are more expansive than in other cases. For instance, "law enforcement" awards for injury or death are NOT subject to the "Maximum Awards" caps for lump sum and periodic payments (see that topic, below) [CVCA s.19(5)].

As well, "law enforcement" awards for injury (NOT death) may include - IN ADDITION to the generally-available awards under s.7(1) CVCA [discussed immediately above in sections (b) through (f)] - additional "common law" damages [CVCA s.7(2)].

While this sounds like the Board is in the same position as a civil court might be with respect to "law enforcement" damage claims (ie. full range of damage availability and no limit on quantum of awards) - this is not the case.

Firstly, the opening of "law enforcement" awards to common law style damages has been limited. In Kealey v CICB (Ontario) OJ #2386 (Div Ct, 1982) the Court considered the interaction between s.7(1) and 7(2) of the CVCA where a claimant sought broad court-like common law damages. The Court endorsed the Board's holding that s.7(2) only authorized TYPES of damage not included in s.7(1) CVCA, not additional amounts on top of the s.7(1) categories:

The Board construed s.7(2) to mean that only damages other than those already identified under s. 7(1) may be considered for compensation under s. 7(2). We share that view.

After this limitation is imposed, the most obvious candidate for use of s.7(2) is "punitive damages", the only main category of damages not already covered by CICB compensation in s.7(1). A further limitation on this is that the common law of punitive damages will not award them when the defendant has already been punished by the criminal court for the same behaviour. Other general principles of common law damages - including the meaning of "punitive" damages - are discussed at this link:

Small Claims Court Legal Guide: Ch.8, s.2(n): Pleadings: Principles of Pleading: Pleading Damages
Secondly, while all "law enforcement" compensation awards are free from the "one victim" and "one occurence" lump sum maximum award caps discussed below [CVCA s.19(5)] (see "Maximum Awards", below), the Board does not view this as authorization for them to accept common-law damage quantum standards in their awards, but only as authorization to occasionally exceed the caps.

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