(Re) 1612-00794, 2017 ONCICB 144

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Christie Jefferson Date: June 06, 2017 Indexed as: (Re) 1612-00794

ORDER

INTRODUCTION

1The Applicant is seeking financial compensation from the Criminal Injuries Compensation Board (CICB) in accordance with the Compensation for Victims of Crime Act, RSO 1990, c. C.24, as amended (the “Act”). The Applicant is seeking pain and suffering as a result of an assault that occurred on [date], 2016 where he sustained physical and psychological injuries. The incident was reported to the Police and resulted in a charge of assault which was withdrawn in favour of a peace bond. As there was no conviction, the perpetrator must be referred to as the Alleged Offender and cannot be named in this Order.

DECISION

2The CICB approves the claim and awards the Applicant the sum of $4,000.00 for the reasons set out below.

ISSUES

3The absence of a conviction does not mean that the CICB is precluded from making an order of compensation. Subsection 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. The Applicant is required to prove, on a balance of probabilities, not only that he was a victim of a crime of violence but also that his injuries resulted from the crime pursuant to subsection 5(a) of the Act.

HEARING

4The hearing was conducted in writing on the basis of the materials contained in the Applicant’s file.

Documentary Evidence

5The CICB received the following documents in addition to the submissions by the Applicant with respect to the claim: Police Report, a Report from [Name] Hospital Fracture Clinic and a statement from the Applicant to his landlord following the assault.

6The then [elderly] Applicant indicates that the Alleged Offender had just moved into the apartment above him and there were ongoing problems with excessive noise. On the night in question, the Applicant went to the Alleged Offender’s door to speak to him about very loud thumping such that he could not sleep. The Alleged Offender opened the door, naked and reeking from alcohol, and proceeded to grab the Applicant in a strangle hold, throw him to the ground, and straddled him yelling that he would get his father and brothers to “take care of” the Applicant. He was frightened for his life at this point and he could feel his blood pressure rising.

7The Police Report on the incident indicates that at this point the assault was stopped when a neighbour intervened. Police were called and he was subsequently arrested and charged with assault. The Police report that as the Alleged Offender was on a work visa and had no record, the charge was withdrawn in favour of a peace bond prohibiting any contact with the Applicant. The Alleged Offender has since left.

8The Report from [Name] hospital entitled Fracture Ambulatory Consult and dated [date], 2016, notes that the Applicant had been experiencing ongoing issues since the assault with his fourth digit on his left hand, and he was unable to extend the joint in this area. An image taken in 2015 was compared to a current image and it was noted that the Applicant had a more pronounced flexion deformity on that joint compared to a year earlier, and Clinic attributed this damage to the assault.

9The Applicant indicates that for the first time he is frightened in his own residence. He reports that his hand was swollen and stiff for at least 7 weeks and that his whole body ached after the assault.

ANALYSIS AND DECISION

10For the following reasons the CICB grants the claim and is awarding $4,000.00 for pain and suffering. The CICB considered that the significant assault on the Applicant by a neighbour was unprovoked. The CICB considered as an aggravating factor that this assault occurred when the Applicant was [elderly] and that it could have resulted in serious injury had it not been for a neighbour intervening. The temporary body pain and ongoing issues with his fourth digit on his left hand were considered, as was the emotional impact of the incident on the Applicant, including fear in his own residence.

AWARD

11The CICB orders payment as follows:

Subsection 7(1)(d) Pain and Suffering $4,000.00

TOTAL AWARD $4,000.00

PAYMENT

12THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $4,000.00