(Re) 1607-04126, 2017 ONCICB 124

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: M. Saleem Akhtar

Date: May 15, 2017

Indexed as: (Re) 1607-04126

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

On [date], 2015, I was doing grocery shopping in my area… I passed a person…He uttered a [racial expletive]. I kept on walking. He ran from behind me and pushed me in the middle of the road during on-going traffic. I fell down and lost my eye glasses. I broke my leg. I hardly could walk. I struggled to make it home. I do not know the person and I did not provoke him.

Applicant’s written submissions regarding his injuries

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

It (assault) happened because of my skin colour. I just started working as a head-chef at a French restaurant. I was feeling happy about my position when I broke my leg on [date], 2015, not knowing fully what happened to me…my employer took me to [Name] Hospital where the doctors told me that my leg was broken. I got very fearful. I never got hurt. I was very agitated when the doctors mentioned to me that I might need surgery…I lost two months of wages… got very depressed, feeling suicidal. I could not cook since I had a broken leg…I grow very anxious when people are walking behind me. I am having a trust issue. I found myself to be very angry after that incident…I am feeling very depressed.

Police Report

5The Police Questionnaire, on file, notes the

[Offender] pushed [Applicant] onto street. [Applicant] fell. Suffered bruise to head and broken leg. Not known to one another. Unprovoked attack.

6After due investigation, Police charged the Offender with assault cause bodily harm in relation to the Applicant 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;

b) The nature and extent of the injuries sustained;

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

d) Consider incident-related expenses and loss of income claim, as requested by the Applicant.

Analysis and Decision

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 victim’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.

c) Consider incident-related expenses and loss of income claim, as requested by the Applicant.

Nature of Injuries

12The Applicant has claimed that his left leg was broken and also his eyeglasses. He was feeling suicidal. He has developed anxiety and trust issues due to the assault. He has become very angry and feels depressed. He is battling drug addiction.

13In support of his injuries claim, the Applicant has provided assessment and treatment reports from [Name] Hospital and his Psychiatrist. The Police Report notes that the Applicant “suffered bruise to head and broken leg.” 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.

14However, the CICB notes that some of the emotional injuries claimed by the Applicant were pre-existing. These include depression, anxiety, moody, angry etc. For example, the Applicant’s Psychiatrist mentions

(…) prior to that (assault) I had been treating him for anxiety and depression…after the incident, his anxiety and depression increased…he became more moody and more angry, defending and confrontational… his childhood experiences led him to be prone to anxiety, mistrust and anger…supportive weekly psychotherapy…medication for anxiety and depression…he will continue to see me for weekly sessions for psychotherapy and medication monitoring. This is covered by OHIP.

15From the above evidence, it is evident that not all emotional issues claimed by the Applicant started with the assault incident of [date], 2015. There were quite a few, which were pre-existing, and did not originate from this incident. However, it is possible that these issues got aggravated/exacerbated as a result of the assault, which the CICB is prepared to accept.

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 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.

Expenses

22The CICB has considered the Applicant’s claim for an unspecified amount in respect to treatment costs such as prescription drugs/counselling therapy costs etc. The CICB generally requires original receipts and/or other supporting documentation for any expenses that are claimed, both to verify the amount claimed and to confirm that such costs were not covered by other sources, such as private insurance or public funds. In the absence of such evidence, and having found no compelling reason to deviate from its usual practice in this instance, the CICB denies this part of the claim.

Loss of Income

23With respect to the Applicant’s claim for income loss, the CICB notes that it generally requires supporting documentation such as employer’s report, pay stubs or Income Tax records and/or medical confirmation of disability 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 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

24The CICB now orders payment as follows:

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

TOTAL CURRENT AWARD: $6,000.00

25The 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

26THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $6,000.00