(Re) 1606-03967, 2017 ONCICB 109

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: M. Saleem Akhtar

Date: May 03, 2017

Indexed as: (Re) 1606-03967

ORDER

Introduction

1This is an Application by the Applicant seeking compensation for physical and emotional injuries arising from the commission of a crime of violence in accordance with the Compensation for Victims of Crime Act, RSO 1990, c. C.24, as amended (the “Act”). The assault was committed against the Applicant by the Offender on [date], 2015 in the province of Ontario.

Decision

2The CICB approves the claim made by the Applicant in relation to an assault committed against him on [date], 2015 by the Offender and awards him the sum of $6,000.00 as compensation for pain and suffering, for the reasons set out below.

Evidence

3In his Application before the CICB, the Applicant described the incident under the heading “Details of the Crime” as follows:

The Applicant had attended a Canada Day Celebration in Downtown [City] and was waiting at a bus stop to return home when he was attacked from the rear by Offender. The Applicant was punched in the eye, rendered unconscious and fell to the ground.

4In terms of injuries, the Applicant described his injuries under the heading “Details of Injuries” as follows: “Post-Concussive Syndrome; Fractured Orbital Bone; Altered vision; Aggravation of pre-existing depression”

5In support of his physical injuries, the Applicant has provided Treatment Reports from [Name] Hospital including Report regarding plastic surgery. These Reports confirm that the Applicant sustained orbital bone fracture, eye swelling, concussion, minor head injury, headache and nausea. The Report adds that the Applicant had pre-existing depression and took anti-depressants.

Police report on file

6The Police Report on file corroborates the Applicant’s version of the incident. The Report adds that

(…) after swearing at him in a very aggressive manner for a few seconds, the accused proceeded to punch [the Applicant] once in the face, causing the latter to fall to the ground. [The Applicant] suffered a bloody nose, but the full extent of his injuries are not known at this time (1 count of Assault Cause Bodily Harm).

7In an e-mail to the CICB, the Police Officer informed that

[the Applicant] did not contribute in any way to the assault that he suffered. He was minding his own business at bus terminal when the accused, who was likely high on drugs, assaulted him without any provocation. [The Applicant] co-operated with the police investigation.

8After due investigation, Police charged the Offender with assault cause bodily harm contrary to the provisions of section 267 of the Criminal Code of Canada RSC 1985, c.C-46. Later, the Offender pled guilty to assault cause bodily harm.

Issues

9Pursuant to subsection 5 (a) of the Act, the CICB must determine on a balance of probabilities

a) Whether a crime of violence occurred against the Applicant that caused him injuries; and, if so;

b) The nature and extent of the injuries sustained;

c) Whether compensation should be awarded and if so, determine the amount;

Analysis and Decision

10The CICB must determine on a balance of probabilities if the Applicant is a victim of violent crime under subsection 5(a) of the Act. This subsection provides that the Applicant’s injury must have resulted from a “crime of violence” constituting an offence against the Code.

11In this claim, the CICB must be able to conclude that the Applicant was probably injured as a result of an intentional assault as opposed to being injured in some other way.

Crime of Violence

12Section 11 of the Act provides that proof of conviction shall serve as conclusive evidence that the offence has been committed. Therefore, in light of Section 11 of the Act, there is no question that the Applicant was a victim of a crime of violence involving the Offender as proven through the conviction described above.

13Hence, the remaining issues to be decided by the CICB in this matter are as follows:

a) The nature and extent of the physical and emotional/psychological injuries sustained by the Applicant as a result of the foregoing assault, and

b) Having regard to the relevant circumstances, whether compensation should be awarded and, if so, determine the amount.

Nature of Injuries

14The Applicant has claimed that he sustained orbital bone fracture, concussion, minor head injury, eye swelling, double vision, nausea, and headache. Emotionally, he claims that his pre-existing depression exacerbated.

15In support of his physical injuries, the Applicant has provided Treatment Reports from [Name] Hospital. These Reports corroborate the Applicant’s account of his injuries, as described above. The CICB accepts these Reports for the purpose of compensation in this matter.

16As regards the emotional impact, the Applicant claims that his pre-existing depression aggravated as a result of the assault. In support of his claim with regards to his psychological injuries, the Applicant has not submitted any treatment reports, and/or any professional advice from a physician or a therapist/counsellor or a social worker, or letters of support, which might have discussed the impact that the assault may have had on him. In the absence of any relevant supporting medical documentation, it is difficult, if not impossible, to gauge the extent of impact that the assault might have had on the day-to-day life of the Applicant. Despite that, the CICB understands that such traumatic incidents do leave emotional scars on applicants' minds, at least to some degree and for some amount of time.

Compensation

17In every case before it, the CICB is required to determine what the relevant circumstances are and to decide whether to grant or deny compensation having regard to those circumstances on a balance of probabilities. There is no automatic right to compensation under the Act. There is only a right to apply for compensation, which may be granted or refused at the discretion of the CICB, in accordance with natural justice. Sheehan and Criminal Injuries Compensation CICB (1975), 1974 439 (ON CA), 5 O.R. (2d) 781. As such, not all injuries warrant compensation. As was noted by the Divisional Court in Pitters v. Ontario (Criminal Injuries Compensation Board), [1996] OJ No. 4339 (Div. Ct):

The nature of the dispositive authority conferred upon the Board by the Act evidences a legislative intention to accord to the Board a substantial measure of discretion. Under section 5 of the Act, the Board "... may make an order that it, in its discretion exercised in accordance with this Act, considers proper." The breadth of the statutory discretion is underscored by the use of the permissive "may" and "in its discretion". The only substantive qualifier on the exercise of discretion by the Board is that it must be "in accordance with this Act". No enumerative list of factors informs the exercise by the Board of its discretion.

18Section 5 of the Act states:

The Board, on Application therefor, may make an order that it, in its discretion exercised in accordance with this Act, considers proper for the payment of compensation to,

(d) The victim

19Based upon a careful review of the documentation on file the CICB finds the Applicant not only a victim of a crime of violence (assault cause bodily harm) within the meaning of and pursuant to subsection 5(a) of the Act but also accepts that he sustained both physical and emotional injuries, as described and claimed by him in his Application.

20In assessing compensation for pain and suffering, the CICB has considered:

a) The nature of the unprovoked assault and the extent of the physical injuries sustained;

b) The emotional/psychological impact of the assault;

c) The ongoing impact on the Applicant’s overall health, relationships and productivity.

21It is important to note that the CICB has wide discretion to determine whether or not to award compensation to an applicant from public funds. Leung v Ont. (Criminal Injuries Compensation CICB) 1995 10629 (ON CTGD), 1995 OJ 1464 (Div. Ct) at para 5. Awards are not paid by the wrongdoer as would be the case if a victim pursued compensation through a civil action. Also, the Act is not intended to make a victim whole or to provide full indemnity to a victim. The CICB also considers previous awards made by it in similar fact cases/situations in order to determine a reasonable amount of compensation.

22After reviewing the evidence in its totality and having regard to all of the above mentioned circumstances of this case as well as considering previous awards made by the CICB in similar fact cases/situations in order to determine a reasonable amount of compensation, the CICB awards the Applicant $6,000.00 as compensation for pain and suffering. The CICB further awards $400.00 as contribution towards legal fees.

AWARD

23The CICB now orders payment as follows:

Section 7 (1) (d) Pain and Suffering $6,000.00

Section 22 Costs (contribution to legal fee) $ 400.00

TOTAL CURRENT AWARD: $6,400.00

24The CICB recognizes that no amount of money can adequately compensate victims for the injustice they have suffered but also finds the amount of the award to be reasonable within the context of the Act.

Payment

25THE CICB ORDERS that the following sums be paid forthwith to:

Taylor Law Firm in trust for the Applicant $6,000.00

Taylor Law Firm $ 400.00