(Re) 1603-02880, 2017 ONCICB 121

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: M. Saleem Akhtar

Date: May 11, 2017

Indexed as: (Re) 1603-02880

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], 2014 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], 2014 by the Offender mentioned above and awards him the sum of $6,000.00 as compensation for pain and suffering, for the reasons set out below.

Evidence

Applicant’s written submissions regarding the incident

3In an e-mail addressed to the CICB on February 17, 2017, the Applicant described the incident as follows:

On [date] 2014, I was riding my three wheel bicycle…I happened to stop beside [the Offender]. He was begging. He told me to move on because I was away and other people, people who might give him spare change. I refused. He then tipped over my bicycle. I broke my color bone.”

Applicant’s written submissions regarding his injuries

4The Applicant described his injuries under the heading “Details of Injuries” as follows:

I received a broken collar bone as a result of the assault. I was [age] at the time. I spent four hours in the ER. When I got home, I needed more care from my attendant care staff, personal intimate care that I usually do on my own like dressing, bathing and toileting…had to stay in my apartment for seven weeks in the summer. I could not use my walker to walk anywhere for a long time…I needed a power wheelchair and that took about fourteen months to get…it was most trying summer and life remains trying. The arm remains weak. I have lost some use of the arm.”

Police report

5The Police Report, on file, corroborates the Applicant’s version of the incident. The report adds that the Applicant “suffers from cerebral palsy….and is unable to speak.” The Offender got into a “verbal altercation” with the Applicant, yelled at him and then “grabbed the handle of the Applicant’s tricycle and violently threw him off the bike.” The Applicant landed on the ground and his helmet came off. Numerous witnesses called 911 and Police and EMS attended. The Offender was arrested and the Applicant was transported to the [Name] General Hospital for treatment. A Police Officer visited the Applicant in the Hospital and he was advised by an attending physician that the Applicant had “suffered from a broken left collar bone.” After he was cleared from the Hospital, the Applicant was “transported to his residence and turned over to 24hr nursing staff of March of Dimes.”

6After 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 was convicted of the same charge.

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 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 Aecision

8The 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.

9In 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

10Section 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.

11Hence, 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

12The Applicant has claimed that he sustained a broken collar bone and lost some use of his arm because of its weakness. He needed help from attendant care staff even for his personal intimate care such as dressing, bathing and toileting. He remained stuck at home for seven weeks that summer. In fact, mostly, he did not go out until he got his power wheelchair which took about fourteen months.

13In support of his injuries claim, the Applicant has provided Assessment and Treatment Reports from [Name], [Name], [Name] Home Health and a Registered Occupational Therapist. Police Report also confirms that the Applicant sustained a broken collar bone. 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.

14In support of his claim with regards to his psychological injuries, the Applicant has not submitted any treatment report, and/or any professional advice from a physician or a therapist/counsellor or a social worker, which might have discussed the emotional impact that the assault may have had on him.

15In the absence of any relevant supporting medical documentation, it is difficult, if not impossible, to gauge the extent of emotional 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

16In 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.

17Section 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

18Based 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.

19In 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.

20It is important to note that the CICB has wide discretion to determine whether or not to award compensation to a victim from public funds. Leung v Ont. (Criminal Injuries Compensation Board) 1995 10629 (ON CTGD), 1995 OJ 1464 (Div. Ct) at para 5. The Act is not intended to make a victim for compensation whole or to provide full indemnity to a victim. Awards are not paid by the wrongdoer as would be the case if a victim pursued compensation through a civil action. 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 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.

AWARD

22The CICB now orders payment as follows:

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

TOTAL CURRENT AWARD: $6,000.00

23The 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

24THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $6,000.00