(Re) 1608-04285, 2017 ONCICB 110

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: M. Saleem Akhtar

Date: May 03, 2017

Indexed as: (Re) 1608-04285

ORDER

Introduction

1This is an Application brought by the Applicant seeking compensation for injuries arising from the commission of an alleged crime of violence in accordance with the Compensation for Victims of Crime Act, RSO 1990, c. C.24, as amended (the “Act”). An assault is alleged to have been committed against the Applicant by the Alleged Offender on [date], 2015 in the Province of Ontario.

Decision

2The CICB approves the Applicant’s claim with respect to an assault committed against her on [date], 2015 by the Alleged Offender and awards her the sum of $6,000.00 as compensation for pain and suffering. The CICB also approves out-of-pocket expenses in the amount of $50.00 incurred by the Applicant in relation to massage/chiropractic services.

Evidence

Applicant’s written submissions regarding the incident

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

I was riding a [City] bus, seated in the area for seniors and disabled persons. Two women were seated on the bus when I boarded. Almost immediately, the two women began harassing me making faces and calling me names as well as making insulting insinuations. This went on for approximately 20 minutes. As I was preparing to disembark, one of these women kicked my right leg. I was shocked of course! She kicked the left leg then, which immediately started to bleed. The door was opened but I was bleeding and refused to leave… the bus driver, inspector, [Name] Police and ambulance personnel attended to my injuries. The police were unable to locate the women who left the bus when my injuries were identified by others…

Applicant’s written submissions regarding her injuries

4In her Application, the Applicant described her injuries under the heading “Details of Injuries” as follows:

I had immediate bleeding and bruising. The bruising has persisted and my legs are discolored. Importantly, the incident has changed me. I was a very independent woman previously…I have lost confidence, my vitality and spark. I am somewhat fearful and disinclined to use the public transit system. I am a pensioner and therefore have had little treatment beyond physician care from the thrombosis clinic, my doctor and massage. I have spent many weeks with ice on my legs. I realize that since this incident, I am overall less happy, my independence is lost and my identity overall is affected irreparably. I’m offended and shocked as well as fearful that people would assault me (a senior) in this way…One week later, I noticed two lumps in my left leg…I was diagnosed with clots and I was started on blood thinners.

5In support of her physical and emotional injuries claim, the Applicant has provided Treatment Reports from her Family Physician and from [Name] Health Care. These Reports corroborate her version of her injuries. The Applicant has also submitted a Physiotherapy Report, which confirms that she was treated for the injuries she had sustained as a result of the assault on her.

Police Report

6Police Report on file, corroborates the Applicant’s version of the incident. It adds that there were no leads as to the identity of the suspects and the matter was considered “complete unsolved.” The Report indicates that the assault on the Applicant was “unprovoked.” The Report confirms that the Applicant “suffered two bruised ankles. Her left ankle also suffered a small abrasion which was bandaged. She refused any further medical attention from EMS. She stated that she would support charges if police were able to locate and identify the suspects.”

Issues

7Pursuant 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; and if so;

b) The nature and extent of the injuries sustained;

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

d) Consider expenses claim, as requested by the Applicant.

Analysis and Decision

8With respect to an incident of physical assault alleged by the Applicant to have occurred on [date], 2015, the fact that there has not been a conviction is not fatal to the Applicant’s claim.

9Section 16(1) of the Act provides that compensation may be awarded whether or not a person has been prosecuted or convicted of the offence giving rise to the injury or death.

Crime of Violence

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 Criminal Code of Canada, RSC 1985, c.C-46.

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. The standard of proof in cases before the CICB is “on a balance of probabilities.” Clear, cogent and convincing evidence is required to satisfy the standard of proof. In essence, the CICB must determine whether the Applicant’s allegations regarding the incident are substantially the most probable version of events to have occurred. The CICB must not consider the Applicant’s evidence in isolation; rather, the CICB is required to assess the totality of the evidence presented.

12Under the legislation, it is the CICB that is required to decide whether a relevant offence, “a crime of violence”, has taken place. It is for the CICB to decide the matter, on the evidence adduced before it, and upon proper construction of its statutory mandate.

13The issue as to what constitutes a “crime of violence” was also considered by the Alberta Court of Appeal in its decision in R. v. Neve, 1999 ABCA 206, [1999] A.J. No. 753 (C.A.). In Neve, the Pitters case was cited at paragraph 74. At paragraph 85 of the Neve decision, the Alberta Court of Appeal found that simply because an offence did result in some injury, it would not automatically make the offence a violent offence. The Neve decision and the Pitters case, have been cited in other subsequent cases including the Ontario case of R. v. Carlson, [1999] O.J. No. 5305 (S.C.J.) and the Manitoba case of R. v. Cook 2010 MBQB 237, [2010] M.J. No. 327 (Q.B.). In Carlson at paragraph 19, Justice Platana similarly commented that:

While actual injury is not required before an offence can be classified as a ‘violence offence’, it does not follow that simply because an offence did involve some injury this automatically makes the offence a violence offence.

14Based upon a careful review of the documentation on file, the CICB finds the Applicant, on a balance of probabilities, 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 she sustained both physical and emotional injuries.

Nature of Injuries

15The Applicant claims she sustained bleeding and bruising. The bruising persisted and she was diagnosed with blood clots in her legs. She had to take medication (blood thinners) in order to address blood clot issues. Psychologically and emotionally, the assault has changed her. She is no longer a very independent woman, which she used to be in the past. She has lost her confidence, vitality and spark. She has become somewhat fearful and disinclined to use the public transit system. She feels less happy. She felt offended, shocked and fearful for being assaulted as a senior person.

16In support of her physical and emotional injuries claim, the Applicant has provided treatment reports from her Family Physician and from [Name] Health Care. These reports corroborate her version of her injuries. The Applicant has also submitted a physiotherapy report, which confirms that she was treated for the injuries she had sustained as a result of the assault on her. The CICB accepts these reports for the purpose of compensation in this matter.

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 Board (1975), 1974 439 (ON CA),

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] O.J. 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

19In assessing compensation for pain and suffering in this case, 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; and

c) The CICB also took into account that the Applicant was a senior person and deserved respect and better treatment from members of the society.

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

20It 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 Board) 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 for compensation 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.

21After reviewing the evidence in its totality and having regard to all of the above mentioned circumstances 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.

Expenses

22The CICB has considered the Applicant’s claim in the amount of $254.50 in respect to massage/chiropractic expenses. The Applicant has provided proof of out-of-pocket expenses in the amount of $50.00. The CICB finds such costs to be both reasonable and within the context of the Act and, therefore, awards $50.00 for such costs.

AWARD

23The CICB ORDERS payment as follows:

Section 7(1) (a) Treatment expenses $ 50.00

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

TOTAL CURRENT AWARD $6,050.00

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

Payment

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

The Applicant $6,050.00