(Re) 1608-04527, 2017 ONCICB 162

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Jo-Anne Hughes Date: June 29, 2017 Indexed as: (Re) 1608-04527

ORDER

Introduction

1In this case, the Applicant claimed he was assaulted by his wife’s ex-husband during a child custody exchange.

2In this case, the CICB is required to determine whether a crime of violence has occurred as per section 5(a) of the Act, what injury, if any, arose from it, and the relevant circumstances affecting whether or not compensation should be awarded and if so, the amount.

Incident

3In his August 2016 submission to the CICB, the Applicant wrote that during a routine exchange of the custody of his wife’s daughter with her ex-husband, the Offender, he brutally assaulted the Applicant, knocking him unconscious and stomping on his head.

Police Report

4The CICB received a report from the [Name] Police Service in support of the Applicant’s claim. Police confirmed that the Applicant heard there was a disturbance at the front door of the Offender’s residence so he got out of his car and ran to the door asking what was happening. Then, the Offender punched the Applicant twice in his head, making him lose consciousness and falling to the floor where the Offender stomped on his head. Police reported that the Applicant was taken by ambulance to the Hospital with fractures to his skull and jaw.

5Documents received by the CICB indicated that the Offender was originally charged with assault and then after the Applicant filed a complaint against Police, he was able to independently charge the Offender who was ultimately charged with aggravated assault, assault causing bodily harm, assault, assault with a weapon and uttering threats.

6On [date], 2016, the Offender was convicted of assault causing bodily harm and given a conditional sentence for a period of three months plus probation for a period of nine months and his DNA was collected and added to the national offender’s databank.

Injuries

7In his submission to the CICB, the Applicant wrote that as a result of this incident, he received a severe concussion, fractured jaw and skull, retrograde amnesia, a cut on his nose and a cut lip and a bump on the back of his head.

8The amnesia diagnosis was as a result of the Applicant being unable to remember what happened to bring him to the Hospital and common things like the day of the week or the date. A CT scan confirmed the Applicant had a fractured jaw and skull. Neurosurgical follow-up showed that his concussion resulted in blurred vision, headaches, dizziness and nausea. Also, he suffered from focus/concentration issues, inability to multi-task, lack of attention to detail and memory loss – especially around the time of the assault – for a ten hour period.

9The Applicant reported that the effects of this incident were magnified by their family decision to seek sole custody of his wife’s daughter and that along with issues getting Police to respond to their statements led to them filing private charges which were eventually adopted by the Crown and led to two years of court activity related to this one incident.

10In his [date] 2016 Victim Impact Statement to the Court, the Applicant wrote that in addition to his physical injuries which had on-going post-concussion issues, he struggled on emotional and mental basis from this incident. He was unhappy that the Offender broke his trust and that he might not have survived this assault without the intervention of his wife. The Applicant missed two months of work and since he is self-employed, he was not supported by benefits during his time off. He paid for counselling expenses and his $200 sunglasses were broken by the Offender.

Medical Reports

11An Ambulance Report confirmed the Applicant was assaulted with punches and kicks to the head. He was displaying concussion-like symptoms including being pale, nauseated and repeating himself. The Applicant was unable to open his mouth due to his suspected jaw fracture and he was suffering from bruising on his face, eye and the back of his head.

12A CT scan confirmed the Applicant had “undisplaced fractures of the left mandibular ramus and the pterygoid plate” (jaw and skull). The Applicant was assessed over a period of eight hours and then released from the emergency department with instructions to follow-up on his concussion symptoms.

13The CICB received a report from the Applicant’s Dentist, Dr. [Name], who saw him for an examination on [date], 2014 for an emergency exam which showed no significant issues with his teeth. The Applicant paid $65.00 for this treatment.

14The CICB received a report from a Dentist, Dr. Name, who did an examination and an x-ray of the Applicant’s mandibular fracture. The Applicant paid $167.00 for this treatment on [date], 2014.

15The CICB received a Therapy Report from [Name] who saw the Applicant for three hours of intake and one hour of treatment (in [dates] 2016) for his injuries. The Applicant reported that after the incident, he struggled with many aspects of his life including work and his personal relationships. He was frustrated that the emotional stress and anger from this incident led to frustration which affected him on a daily basis. In [Month], after the Court case was over, the Applicant reported that he was feeling much less stress and there was a “sense of closure” to the incident. Also, he was enjoying activities and both he and his wife were pleased that they recently got new jobs. The Applicant paid $30.00 for this counselling service.

Expenses

16The Applicant submitted the following expense claims:

• Ambulance: $45.00 – with receipt
• Dental: $232.00 – with receipts (Dr. [Name] $167.00 + Dr. [Name] $65.00)
• Prescription Drugs: $45.28 – with receipts
• Counselling: $30.00 – with receipts
• Medical/Ambulance Report: $10.00 – with receipts
• Dental Report – Dr. [Name]: $80.00 – with receipts
• Other Expenses: $5,585.12 – with receipts for: medical images on CD, Shoppers Drug Mart, Hotels, Office Supplies, Gas, court-house parking, photocopies for court or hearings, lawyer’s fees, sunglasses, other expenses, missed work for Applicant’s wife, food for travel, loss of future business plus 1,000 hours of lost work time.

17The Applicant provided his income tax records to support his claim for loss of income for a period of two months. Upon review of this information, it showed that the Applicant had an average net income of $6,740.00 per year during the period of 2011 through 2013. Then, in 2014 and 2015, his average income increased to $8,807.00 per year. Considering that the Applicant’s income tax records show that his income increased by an average of $2,067.00 per year, the Applicant has not proved that he lost income during 2014 and 2015 as a result of this incident. The CICB also requires medical proof of disability to support a loss of income claim and that was not provided by the Applicant.

Analysis and Decision

18Section 11 of the Act states that proof of conviction shall be taken as conclusive evidence that the offence has been committed. The CICB finds that the Applicant is a victim within the meaning of section 5(a) of the Act as a result of a single incident of assault causing bodily harm.

19In assessing compensation for pain and suffering, the CICB has considered the nature of this incident and how it affected the Applicant. In this case, the Applicant was violently assaulted in front of his family members. As a result, the Applicant was knocked unconscious and he received a fractured jaw and skull, bruises and cuts on his head and retrograde amnesia. The Applicant struggled with post-concussion issues resulting in loss of focus/concentration and memory loss. He also claimed that this incident affected his ability to work and earn a living for several months.

20Due to an administrative oversight, the Notice of Hearing was inadvertently sent to the Offender on this file. Certainly, this broke the Applicant’s expectation of privacy as established in the CICB’s practice. Given the seriousness of the disclosure the CICB reported this breach to the Information and Privacy Commissioner. To date the CICB has not received correspondence from the Offender in response to the Notice of Hearing. The CICB apologizes for this error and it acknowledges the additional anxiety and stress which it has caused to the Applicant and his family.

21The Applicant’s claim was supported with Reports from Police, a Hospital, a Doctor and two Dentists. Considering this evidence and the submissions by the Applicant, the CICB assesses this award at $12,000.00.

22The CICB considered the Applicant’s claims in respect to various 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 $442.28 for such costs. This covers: Ambulance $45.00, Dental $232.00, Prescription Drugs $45.28, Counselling $30.00, Medical Report $10.00 + Dr. [Name] Report $80.00.

23With respect to the other expenses which totaled to $5,585.12, the CICB generally awards compensation only to cover expenses related to treatment of the injuries sustained (i.e. hospital, medication or therapy expenses) and not for expenses related to personal items/property/moving costs/financial debts. Having found no compelling reasons to deviate from its usual practice in this instance, the CICB declines to award compensation for the Applicant’s claims in respect to the costs listed in detail above.

24With respect to the Applicant’s claim for income loss, the CICB notes that it generally requires supporting documentation (i.e. 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, and to confirm the period of disability. In the absence of Income Tax Records showing an actual loss following the incident and in the absence of medical confirmation of the Applicant’s inability to work, 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 his claim in that regard is hereby denied.

Award

25The CICB orders payment as follows:

Section 7(1)(a) Expenses $ 352.28 Section 7(1)(d) Pain and Suffering $12,000.00 Section 22 Costs (Reports) $ 90.00 TOTAL AWARD (AND COSTS) $12,442.28

26The 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

27THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $12,442.28