Re 1607-04130, 2017 ONCICB 147376

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Keith Forde

Date: February 16, 2017

Indexed as: (Re) 1607-04130

ORDER

Introduction

1The Applicant asks the Criminal Injuries Compensation Board (CICB) to compensate him for injuries resulting from a crime of violence which occurred on [date], 2014 in [City] in accordance with the Compensation for Victims of Crime Act, RSO 1990, c. C.24, as amended (the "Act"). He is seeking compensation for pain and suffering incurred from one act of assault causing bodily harm, perpetrated by the Alleged Offender. The Applicant is also seeking compensation for dental costs, prescription drugs, and ambulance and treatment expenses. The incident was reported to the [Name] Police Service. However, the Police did not lay any charges, as they found there were insufficient grounds for the Alleged Offender to be charged.

Preliminary Issues

2Prior to the commencement of the hearing, the Panel advised the applicant of the potential difficulties that this Application faced in respect to section 17(1) and section 17(2) of the Act, which read as follows:

17(1) In determining whether to make an order for compensation and the amount thereof, the CICB shall have regard to all relevant circumstances, including any behaviour of the victim that may have directly or indirectly contributed to his or her injury or death.

17(2) The CICB may, in its discretion, refuse to make an order for compensation or ordered a reduced amount of compensation where it is satisfied that the applicant has refused reasonable co-operation with, or failed to report promptly the offence to, a law enforcement agency.

3The Applicant confirmed that he understood the meaning of the above sections and, despite having been offered an adjournment to prepare for this issue the Applicant and his legal representative indicated that they were prepared to proceed with the hearing as scheduled.

Decision

4The CICB awarded the Applicant $6,000.00 for pain and suffering, $45.00 for ambulance costs, $1,467.71 for dental expenses and $121.29 for prescription drugs.

Issues

5The CICB is required to determine whether a crime of violence occurred and what injuries, if any, resulted. 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 as a result of this crime of violence, he suffered an injury pursuant to section 5(a) of the Act;

• The CICB must give consideration to whether the Applicant's behaviour contributed directly or indirectly to his injuries, pursuant to section 17(1) of the Act;
• The CICB must determine whether the Applicant refused reasonable cooperation with the police, pursuant to section 17(2) of the Act;
• The CICB must assess all relevant circumstances and whether or not compensation should be awarded and if so, the amount; and
• The CICB must also determine whether the Applicant's claim for dental costs, prescription drugs, and ambulance and treatment expenses is reasonable within the scope of the Act.

Evidence

The Applicant's Evidence

6The Applicant appeared at the hearing and gave the following affirmed testimony. In the late evening of July 27, 2014 the Applicant and his friend were consuming alcoholic beverages in at least two licensed places. Sometime before 11:00 p.m. the Applicant and his friend returned home, picked up a six pack of tall can beers, placed them in a grocery back and set out on foot to downtown [City]. As the Applicant and his friend were walking in the downtown area crossing an intersection, they saw a couple and then a lone female enter the premises.

7The Applicant and his friend looked up at the house balcony and observed a disc jockey playing music and several people with red cups in their hands socializing. The Applicant said that past experience told him that there was a keg party going on upstairs at the premises. The Applicant and his friend then followed the lone female into the residence.

8The Applicant and his friend entered the premises and immediately walked to the balcony where most of the guests were socializing. The Applicant and his friend stood by the sliding doors that gave entry to the balcony from the living quarters and drank two beers. The Applicant testified that he then talked to five or six different people. During the Applicant's conversation with the unknown guests, he learned that most of the guests came from a High School and that was how he was able to identify the Alleged Offender.

9The Applicant and his friend finished drinking the six beers they had brought with them and then approached the disc jockey and asked him how one goes about buying into the keg. The disc jockey asked the Applicant who he was and who he knew at the party. When the Applicant said he did not know anyone, the disc jockey immediately walked over to the Alleged Offender and spoke to him privately.

10The Applicant said that the Alleged Offender and five of the other guests from the party started pushing him and his friend off the balcony and back into the house. At this time the Applicant stated that the Alleged Offender grabbed the chain from around his friend's neck and at the same time, pushed him violently down the stairs. Upon seeing this, the Applicant described how he threw himself in between his friend and the Alleged Offender, so that his friend who was very intoxicated could make it down the steep stairs safely. As this was going on, and as the Applicant was following his friend down the stairs, the Alleged Offender and other guests were heading down the stairway behind them. As the Applicant was slowly descending the stairs, he was punched in the back of his head by the guests. The Applicant used both of his hands for support by bracing the wall on either side of the steps as he was being pushed down the stairs and to stop from falling onto his face.

11The Applicant said that he believed the Alleged Offender and his friends were hitting his hands so that he could lose balance and fall down the stairs. The Applicant said he understood the danger of this because a friend of his was thrown down a set of stairs and suffered permanent brain damage.

12The Applicant said he made it down the stairs, partially outside on the sidewalk in front of the house. It was at this time the Alleged Offender assaulted the Applicant by punching him in the head from behind. When the Applicant made it fully onto the City sidewalk, the Alleged Offender punched the Applicant directly in his mouth. Upon seeing the blood coming from the Applicant's mouth, the Alleged Offender and his friends ran back inside the residence.

13The Applicant informed the Panel that he asked his friend to call the police; however, his friend was too intoxicated to understand what was requested of him.

14The Applicant said that the police came before the ambulance and he was not sure who called the police. Upon speaking to the police at the scene, the Applicant told the police what had taken place and asked them to make sure they obtain the names of the Alleged Offender as he would like to press charges.

15The Applicant was then taken to the hospital by ambulance. At the hospital, the police officers approached the Applicant and said that they found blood only on the sidewalk and that he was in the wrong. The Applicant testified to the fact that he could see how the police would make that mistake as they would sooner believe eight people over one person.

16When questioned by the Panel, the applicant reiterated that it was the social norm not to be invited to a keg party and that patrons just show up uninvited.

17The Applicant was adamant that as soon as he and his friend were asked to leave, they began to exit the balcony en route to the stairs. However, they were confronted by the Alleged Offender and other guests who verbally and physically assaulted them. The Applicant was also positive that he never fell and was punched in the mouth by the Alleged Offender.

18Finally, the Applicant's legal representative produced two cases for the CICB's consideration: (1) File 1302-91561; (2) A CICB decision published in the Windsor Star dated June 17, 2013.

Medical Evidence

19In support of his claim, the Applicant provided the CICB various medical reports. The CICB was in receipt of a medical report which noted the applicant presented with the following injuries:

Dr. [Name] made an assessment of the patient and identified palatal luxation and slight extrusion of tooth #1.1 and 2.1. Procedural sedation with propofol was performed in order to reposition the teeth. At this point in time the Dentistry/Oral and Maxillofacial Surgery Service was consulted for assessment and management of this patient's injuries.

There were no overt dental fractures. The floor of the mouth was soft and unraised. The uvula was midline. Tooth #1.1 and 2.1 were palatally luxated and slightly extruded by approximately 1 to 2 mm. There was a laceration/avulsion of the gingiva from tooth #1.2 across to 2.2.

20The same Hospital report noted the following from the emergency medical report.

The patient was alert, awake and oriented to person, place and time. He was in no apparent distress. The patient did however; appear to be mildly inebriated as he had consumed 6 beers and 1 to 2 shots earlier in the evening. He had also been sedated with procedural sedation in the Emergency Department, but had since recovered at the time of examination by the Oral Maxillofacial Surgery and Dentistry Service.

21On [date], 2014 the following surgery was performed on the Applicant: Reduction of teeth #1.1 and 2.1 followed by fixation with a wire splint from tooth #1.3 all the way across to tooth #2.3. Instructed to have blenderized diet for 6 weeks following fixation with wire splint.

Injuries

22The Applicant noted the following physical and psychological injuries in his primary information to the CICB.

Physical

23Most of my physical injuries were from being punched in the mouth, not really anything but lumps from the other punches. For two-three months after emergency surgery, my teeth were bound to the roots to try and save them but I got narcosis in the teeth which infected my jaw. I can't describe the pain that I experienced, ongoing for months. I couldn't eat solid food, I couldn't chew, my jaw would only open about half an inch. I had to work, so I couldn't be on pain medication. Anytime I breathed in, laughed, smiled, touched my tongue to my mouth or teeth, for months, I was in immediate and recurring pain. It was like sitting in a dentist's chair for 2-3 months, having them do a root canal over and over with no end in sight.

Psychological/Emotional

24I am told that this event has changed my personality in that I don't smile as often, and when I do, I subconsciously cover my mouth. I have endured weeks without any front teeth and have suffered the embarrassment of people staring. I have learned to talk differently in order to hide my teeth and wonder sometimes if this will change when I have permanent teeth. This individual physically attacked me without provocation and took away my dignity with his vicious selfish actions. Had the attack ended at the doorway, I would have walked away and none of this would have happened, but he consciously followed me to the sidewalk, with no resistance, waited for me to be in a vulnerable position, and punched me in the face with a closed fist.

Alleged Offender's Evidence

25The Alleged Offender attended the hearing and gave affirmed testimony from an off-site location. The Alleged Offender admitted to attending the address in question and said that the owner lives on the top floor and runs three different businesses at that location. The Alleged Offender informed the Panel that the Applicant and his friend would have to walk past a secretary's desk and up the stairs to get to the party which was in a big open room with a balcony.

26The Alleged Offender confirmed that it was a gathering of close knit friends and it was a "bring your own booze party." The Applicant arrived at the party around 10:00-10:30 p.m. and upon arrival there were about 20-30 people present. The Alleged Offender admitted to the CICB that he was present when the Applicant and his friend arrived at the party uninvited in an obvious impaired manner. He said no one knew who they were and that they were "snooping around." The Alleged Offender confirmed that about five or six of his friends went up to the Applicant and his friend and ask them who they were and it turned into a shoving match with a lot of verbal exchanges. The Alleged Offender said that the Applicant and his friend trespassed into one of his best friend's home without being invited. The Alleged Offender said that he was not sure how long they were at the party before they were asked to leave.

27The Alleged Offender said that he was not involved, that he was behind the group the entire time. The Alleged Offender said that he never said anything until the applicant and his friend were outside the premises. The Alleged Offender said that both parties were pushing each other, (the two intruders and his friends) down the stairs, to the elevator ramp at the bottom of the stairs. The Alleged Offender said that when he ran downstairs, everything was kind of separated and both the Applicant and his friend looked like they were impaired by drugs or alcohol and one of them had blood in his mouth.

28The Alleged Offender denied punching the Applicant and denied seeing anyone doing so. He said that he returned to the balcony when the [Name] Police arrived and he was the first to go down stairs and speak to the Police.

29In response to questions from the Applicant's legal representative the Alleged Offender admitted that he came downstairs after the confrontation and that he observed blood coming from the Applicant's mouth at that time. The Alleged Offender clarified that "snooping around" meant that none of the guests were talking to the Applicant or his friend at the party.

30In response to questions from the Panel, the Alleged Offender admitted that he has been involved with the Police in the past for fighting. The Alleged Offender said that he could not remember if he said anything to the Applicant when he came down stairs as the Applicant and his friend were still yelling at the guests.

31The Alleged Offender admitted at the hearing that he never saw when the Applicant and his friend arrived at the party and was not sure who asked them to leave. The Alleged Offender said that he was friends with the owner of the premises' son who also lives upstairs and was present at the party. The Alleged Offender said that he talked to the Police because he was not drunk and he was not sure if the owner of the premises' son talked to the Police on the night in question.

Evidence of Police Witness

32The Police Witness appeared before the CICB and gave the following affirmed evidence. He is a member of the Police Service and has been for 15 years. He was the first police officer on the scene with his partner and was also the lead investigator. He said that on the day of the incident he spoke with the Applicant's friend who was pacing back and forth and was in an obvious intoxicated stupor. The Applicant was also intoxicated and was yelling at the Police to arrest the people who were standing on the balcony.

33When questioned, the Applicant's friend told the Police that he did not see what happened with the Applicant and that he should never have gone into the party. The Police Witness said that he observed the Applicant bleeding from his mouth and that the Applicant was missing teeth.

34The Police then spoke to the owner of the premises' son and another guest at the party who reported that the Applicant and his friend showed up uninvited and began stealing beer bottles and placing them in their pockets. The Police Witness was told that as the applicant and his friend entered the party and were walking upstairs, one of them grabbed the buttocks of the female they had followed in. The female was not interested in pursuing criminal charges or laying a complaint. They also told the Police Witness that the Applicant and his friend drank liquor from the party and were asked to leave and eventually were pushed out of the party.

35The Police Witness then spoke with another guest, who told them the Applicant and his friend showed up at the party and began drinking all the alcohol. When the guest asked them to leave, they refused, saying they knew people at the party. He asked them to leave again and they refused. The guest then began to push the Applicant and his friend out of the residence and out the door. The guest told the Police Witness that the applicant had a red cup full of liquor in his hand. As he was being pushed out he fell on the last few stairs and landed on his face.

36The Police Witness said that there was a puddle of liquid which smelt like liquor just outside the door at the bottom of the stairs. The Police Witness checked the apartment for blood and located two drops, one between the balcony and the door way and another drop of blood on the chair tracks down at the bottom of the chair rail. The Police Witness said that he could not locate the applicant's teeth anywhere and the premises did not show any signs of disturbance, nor did it look like there was a fight in the apartment. The Police Witness said that the Applicant's friend told them that he did not see the Applicant being assaulted or falling down the stairs.

37The Police Witness concluded his testimony by stating that based on his investigation, there were no grounds for any criminal assault charges against anyone and that the force used to remove the Applicant and his friend was not excessive. His investigation showed that there was no crime of violence committed against the Applicant or his friend. The Police Witness said that the home owner was not interested in pursuing charges against the Applicant nor his friend for being unlawfully in a dwelling and the female whose buttocks was grabbed was not interested in pursuing a sexual assault investigation. The Police Witness checked the party guests' hands and knuckles and found no signs of blood or cuts and came to the conclusion that the injury to the Applicant's mouth was as a result of the Applicant falling down the stairs.

38When the Panel Member asked the Police Witness how the two separate drops of blood got back into the premises, he said that he did not know and could not say if the blood came from the night of the incident.

39In response to questions from the legal representative, the Police Witness said that the Applicant was too intoxicated to talk while at the hospital and contacted him and his partner sometime after seeking to have charges laid against the Alleged Offender. The Police Witness admitted that there was no blood on the sidewalk where the Applicant was supposed to have fallen. The Police confirmed that the Applicant was the one who called 911 to report the incident from the scene.

ANALYSIS

40The fact that there has not been a conviction is not fatal to the Applicant's claim. Section 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. However, the CICB must still be presented with sufficient evidence to establish the case on its standard of proof, that being, "on a balance of probabilities".

41The Panel Member found the Applicant's evidence to be credible and reliable. The applicant gave his testimony in a forthright manner which was consistent with what he reported in his primary information to the CICB. Although the applicant spoke in a measured tone of voice, he was convincing in the manner in which he related the series of events involving the assault. Moreover, when the Applicant was questioned, he did not feel for answers but in a calm, assured voice, he responded with confidence and without hesitation. The Applicant answered the questions, even when the answers were not favourable to his claim.

42The Alleged Offender in his testimony took the position that he did not assault the Applicant nor did he see any of the party attendees assaulting the Applicant. The Alleged Offender said that he did not go downstairs until after everyone was on the sidewalk and that the Applicant and his friend were in a shouting match with the party attendees and he returned upstairs. However, the Panel Member found it strange that when the Police arrived, the Alleged Offender was the first one down to greet them. Further, no one from the party saw it fit to call the Police or 911- it was the injured Applicant who did so. The panel member found the Alleged Offender's testimony to be guarded and deliberate. When he was asked if he was ever in trouble with the Police, he was reluctant to answer and wanted to know what it had to do with the proceedings. Eventually the Alleged Offender admitted that he had been in trouble with the Police for fighting.

43In relation to the Police Witness's testimony, the Panel Member deducted that the Police Witness focused more on the Applicant and his friend being unlawfully in a dwelling. Some of the Police Witness's testimony was consistent with the Applicant's and some was not. The Panel Member observed that the medical reports noted that the Applicant was slightly inebriated. However, the Police Witness said that the Applicant was intoxicated. The Police Witness also confirmed that the Applicant wanted the Alleged Offender charged on the night of the incident and even called him sometime after the incident in an attempt to get him to lay charges against the Alleged Offender. The CICB is alive to the fact that the Police Witness had two conflicting narratives of what occurred on the night in question.

44Next, the CICB also relied upon the medical reports from [Name] Health Sciences Centre and the Dentist, [Name] of [Name] Dental Care. The medical reports do not support the findings that the Applicant fell on his face as the Alleged Offender suggested. The reports clearly list the injury which was palatal luxation and slight extrusion of tooth #1.1 and 2.1. The Applicant himself described his injuries as bumps to the back of his head from blows inflicted by guests of the party from behind and from a punch to the mouth. The Applicant's evidence with respect to how he obtained the injuries is consistent with the injuries themselves.

45After careful consideration of the evidence, including the documentary evidence, the oral evidence of the applicant, Alleged Offender and the Police Witness, the CICB is persuaded that the Applicant was the victim of a crime of violence, specifically, the crime of assault causing bodily harm which caused physical and emotional injuries to the applicant. The CICB therefore concludes that the Applicant is a victim under section 5(a) of the Act and is entitled to compensation.

46Despite finding the Applicant to be a victim of a crime of violence, the CICB is not satisfied that the named Alleged Offender is the person responsible for the assault causing bodily harm on the Applicant.

47At the outset of the hearing, the CICB informed the Applicant that section 17(1) and (2) of Act had been identified as possibly being relevant in his claim. In order to properly consider the provision of the Act, the CICB must weigh all the relevant circumstances and consider whether the conduct of the victim directly or indirectly contributed to his injury. Following these steps, the CICB must decide whether to grant compensation, deny compensation or to allow a reduced award under section 17(1) of the Act. In deciding this aspect, the CICB should have regard to proportionality between any criminal act against the Applicant and any behaviour of the Applicant that directly or indirectly contributed to his injury.

48Here the relevant circumstances are that the Applicant walked into a house party without being invited. The Applicant believed that the party was a keg party where alcoholic beverages were being sold and where no invitations were necessary and testified to the fact that such parties exist in [City] and are a social norm. When the Applicant was asked to leave after spending some time there, he was pushed out of the party by at least six guests and once outside on the sidewalk, he was punched in the mouth. While it may not have been prudent for the Applicant to attend a party without an invitation, the assault cause bodily harm was not expected. In weighing the actions of the Applicant against the violent nature of the assault and the injuries resulting from it the CICB concludes that there is no basis for the CICB to deny or reduce compensation under section 17(1) of the Act in this matter.

49Similarly, the confirmed evidence before the CICB is that the Applicant called 911 from the scene of the assault and reported promptly the assault to the Police and that in all respects and at all times the Applicant was cooperative with the Police to the extent that his medical condition permitted him to do so. Accordingly, the CICB concludes that this is not an appropriate case to deny or reduce an award to the Applicant under section 17(2) of the Act.

50In assessing compensation for pain and suffering, the CICB has considered the totality of the evidence of injury, including the oral evidence of the Applicant as well as the medical reports and records. The Applicant suffered the loss of his two front teeth as a result of the assault causing bodily harm against him, which required surgical intervention. The dental evidence appears to suggest that the Applicant's injury is on-going and further dental surgery may be required in the future. The CICB also accepts that the incident has had an impact psychologically on the Applicant's health, relationships, general and emotional state. On the totality of the evidence before it, the CICB assesses compensation for pain and suffering in the amount of $6,000.00.

51The CICB considered the Applicant's claims in respect to medication, dental work and ambulance costs, for which receipts were provided. The CICB finds such costs to be both reasonable and within the context of the Act and will therefore award $1,634.00 for such costs.

52If, as a direct result of this crime, the Applicant requires additional dental treatment and the cost of that dental treatment is not covered by other sources, the CICB may, pursuant to the provisions of section 25 of the Act, consider varying this Order to include a claim for additional dental expenses. The Applicant must obtain authorization from the CICB prior to incurring any such expense. The Applicant may contact the CICB to determine what information is required in order to obtain authorization. This section 25 pertains only to the Applicant's two front teeth that were lost as a result of the assault. The estimates supplied to the CICB must be specific to the above mentioned two front teeth and must not only include implants but dental choices.

53Should the Applicant be awarded compensation as a result of any civil action, the applicant must notify the CICB immediately. The CICB is entitled to be reimbursed from those funds for any amount of compensation it has awarded to the applicant, pursuant to section 26(5.1) that states:

26(5.1) The Board is entitled to be reimbursed, out of any amount recovered by the applicant from the offender or any other party, for the amount of compensation awarded to the applicant.

Award

54The CICB orders payment as follows:

Section 7(1) (a) Expenses $1,634.00

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

TOTAL AWARD $7,634.00

55The 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

56THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $7,634.00