CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: M. Saleem Akhtar
Indexed as: (Re) 1608-04601
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 physical assault causing him injuries committed against him on March 21, 2015 by the Alleged Offender and awards him the sum of $9,000.00 as compensation for pain and suffering.
Evidence
Applicant’s written submissions regarding the incident
3In his Application before the CICB the Applicant described that at the time of the incident, he was attending a local bar. At the bar, there was a bartender whom he knew. The bartender “appeared quite drunk and started harassing” him as soon as he entered the bar. The bartender was making comments about him “not wanting to be his friend.” The Applicant did not attach any importance and continued watching the hockey game. The bartender continued harassing the Applicant. After about 10 minutes, the Applicant became “more assertive” with his comments about “being left alone.” At this point, another individual who had overheard the Applicant’s comments confronted him. The Applicant told him to get lost. After a few minutes, he assaulted the Applicant and hit him in the left eye with a beer bottle. After assaulting the Applicant, the Alleged Offender left the scene. No police or paramedics were called by the bar establishment. The Applicant got up and went to [Name] Hospital where he was admitted directly for surgery.
Applicant’s written submissions regarding his injuries
4In his Application before the CICB, the Applicant claims that he had to undergo eye surgery and he received “6 stitches just to retain his eyeball’s original form, which was in horrible shape.” In addition to the immediate surgery, he underwent four more surgeries. He remained hospitalized for three weeks. After the assault, the Applicant has become hyper-vigilant, quiet and shy. His limited vision has crippled his “ability from a confidence and a literal standpoint.” Besides, his employment has been negatively impacted.
5In support of his injuries claim, the Applicant has submitted reports from [Name] Hospital, his Ophthalmologist and Family Physician. These Reports corroborate the Applicant’s account of his physical injuries. With regards to the emotional impact, the Applicant has claimed that the assault has affected his “confidence and self-worth.”
Police Report
6Police Report, on file, corroborates the Applicant’s version of the incident. It adds that the Applicant reported the matter to Police on [date], 2015, about two weeks after the incident because he was “very busy receiving medical attention.” After investigation, Police determined that they “weren’t able to identify the suspect.” Hence, the matter was “parked further information that will identify a suspect.”
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 incident related loss of income, 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.
13Based 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 within the meaning of and pursuant to subsection 5(a) of the Act but also accepts that he sustained injuries.
Nature of Injuries
14The Applicant has claimed physical injuries accruing from the assault which include laceration to left eye resulting in four surgeries to correct the damage to his left eye. The Applicant is unable to see out of his left eye.
15In support of his claim, the Applicant has provided medical reports from [Name] Hospital, his Ophthalmologist and Family Physician. Commenting regarding prognosis and estimated time of Applicant’s eye recovery, his Family Physician writes in his medical report that he is “not aware that [Applicant] will get his vision in left eye recovered.” The CICB accepts these accounts for the purpose of this matter and compensation thereof.
16In terms of the emotional impact, the Applicant has claimed that the assault and its resultant injuries have affected his “confidence and self-worth.” However, he has not provided any counselling/therapy report in support of his claim. In the absence of any relevant supporting documentation, it is difficult, if not impossible, to gauge the extent of emotional/psychological impact that the assault might have had on the day-to-day life of the Applicant. Despite that, the CICB understands that such a traumatic incident has the potential of leaving 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 Board (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] 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 assault and the extent of the physical injuries sustained;
b) The emotional / psychological impact of the assault; and
c) 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 $9,000.00 as compensation for pain and suffering.
Loss of Income
22The CICB has considered the Applicant’s claim for loss of income in the amount of $7,500.00 since March 21, 2015. The CICB generally requires supporting documentation such as employer’s report, pay stubs or Income Tax records in order to verify an applicant’s employment status and average net earnings at the time of the incident, and to determine whether any income-replacements benefits were received during the period being claimed. In the absence of any relevant supporting documentation, and having found no compelling reasons to deviate from its usual practice in this instance, the CICB finds that the Applicant has failed to establish his claim for income loss and the claim in that regard is hereby denied.
AWARD
23The CICB ORDERS payment as follows:
Section 7(1) (d) Pain and Suffering $9,000.00
TOTAL CURRENT AWARD $9,000.00
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 $9,000.00
DATED at Toronto this 3rd day of May, 2017.
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M. Saleem Akhtar, Member