(Re) 1606-03908, 2017 ONCICB 164

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: M. Saleem Akhtar Date: July 04, 2017 Indexed as: (Re) 1606-03908

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 compensation for pain and suffering for the physical and emotional injuries that he claims he sustained as a result of the assault committed against him on [date], 2014 by the Offender. The Applicant is also seeking incident related expenses. The Offender in this matter was convicted for aggravated assault.

DECISION

2The CICB approves the claim made by the Applicant in relation to the assault committed against him on [date], 2014 by the Offender and awards the Applicant the sum of $6,000.00 as compensation for pain and suffering, for the reasons set out below. The CICB also approves $52.00 as travel to hearing costs.

ISSUES

3Pursuant 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;

d) Consider incident related expenses, as requested by the Applicant.

HEARING

4The Applicant appeared at the hearing on June 12, 2017 and provided sworn oral testimony. His Counsel, Chris Topple, also attended the hearing.

Written submissions regarding the incident

5In his Application before the CICB, the Applicant described the incident under the heading “Details of the Crime” as follows:

On [date], 2014, I went to a wedding…At about 12:30 am I heard a commotion on the dance floor. The, I heard [Offender] call someone “N” word. There were black and white people at the wedding. In total there were 8 black guys. I thought there was going to be fight because of the reaction of some of the black guys. There were about 15-20 people left. Things calmed down, so we took the elevator downstairs and went outside. When I walked outside, I saw [Name] had her arms wrapped around [Offender]. There was words exchange between some of the black guys and [Offender]. Things seemed to calm down. Lots of people started leaving. I thought that was the end. The bride was going to drive me, [Name] and [Name] home because we wanted to leave. The woman who was with [Offender]…started to run up [Road]. [Name] followed the girl. Then, [Name] followed. I told the bride to just go home. Then, I went up the [Road] following them to see what was going on…some of the black guys also followed. Words were exchanged again and most of the people left. When I turned around, [Name] was on the ground somehow. I didn’t see what happened. [Name] was walking towards [Offender] asking why he hit his wife [Name] I got in between [Offender] and [Name]…[Offender] punched around me and hit [Name] in the face knocking him out cold…I was still between [Offender] and [Name]. The, when I was looking at [Name] on the ground to see if he was ok, [Offender] hit me when I was not looking at him. I fell over [Name] and did a back flip over the hill. When I got up, I was confused. After that, I don’t know what happened. Talking to [Name] later, he thanked me saying that he thinks I saved his life.

Oral Testimony regarding the incident

6In his sworn oral testimony before the CICB on June 12, 2017, the Applicant told that he was attending a wedding party where a fight broke out between two other parties. The Applicant got caught in between the parties and was hit by the Offender causing him injuries. The Applicant told that he had never seen or met the Offender prior to this event and there was no interaction between the two even at the wedding party. He cooperated with the Police at all stages of the matter.

Police Report

7As per the Police Questionnaire, on file, under the heading “provide details of the incident” it states that “the Offender was drunk and began to assault various people at a wedding. [Applicant] was knocked unconscious.”

8The Offender was convicted of aggravated assault contrary to the provisions of section 268 of the Criminal Code of Canada R.S.C 1985, c.C-46 (the “Code”).

Written submissions regarding injuries

9In his Application, the Applicant described his injuries under the heading “Details of Injuries” as follows:

The assailant has caused me to have anxiety. I don’t go out. I fear I could be assaulted again. Went to see psychiatrist…I am on medication. I have flashing in my left and right eyes. The optometrist says I have permanent eye damage due to the assault. I also tore rotator cup in right shoulder and grained left knee. I had a concussion due to the assault and I suffer from symptoms still. I get bad headaches. I get cloudiness around my eyes and it gets worse. I get tunnel vision.

Oral Testimony regarding injuries

10In his oral sworn testimony, the Applicant stated that his shoulder rotator was damaged and he had to undergo therapy for many months. His left knee was also hurt and he sustained a concussion as well. He experiences frequent headaches. His eye suffered a blunt trauma and cannot tolerate bright light. His social life is changed. He does not go out very often as he used to do before. He is not working now. He retired as a machine operator.

11When asked by the Panel if he had to have any specific treatment for his eye issues, the Applicant stated “no specific treatment”. He added he had to use dark glasses.

12When asked by the Panel if he had to undergo any surgery for his shoulder issues, the Applicant stated “no surgery was involved.”

13When asked by the Panel if he had a pre-existing surgery to his knee, the Applicant responded he “had a previous surgery, but he was ok prior to the assault.”

Counsel to the Applicant

14Responding to questions from his Counsel, the Applicant testified that his shoulder still bothers him and he does not have full range and full strength. His left knee hurts and he has mobility issues. He still has headaches, which last for hours. He has light sensitivity and feels haziness outside and around his eye area. He has sleep issues. His Doctor had diagnosed him with PTSD and has to take medication for anxiety. He has developed concentration issues. His social life is totally changed and he is fearful of another assault.

Final submissions

15In his final submissions, Counsel highlighted that it was an unprovoked and extremely traumatic incident. The Applicant sustained shoulder and knee injuries. He still has eye issues and headaches impact him for hours. He was diagnosed with PTSD and continues to be under the care of a psychiatrist to this day. He has become socially withdrawn and is living a more secluded life under psychotic emotions. Counsel pleaded a suitable amount of compensation as pain and suffering award.

ANALYSIS AND DECISION

16The 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. In 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

17Section 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.

18Hence, 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, as requested by the Applicant.

Nature of Injuries

19The Applicant sustained physical injuries as well as emotional injuries as already described above.

20In support of his injuries claim, the Applicant has provided Treatment and Assessment Reports from his Ophthalmologist, Physiotherapist, Family Physician and Therapist, which corroborate his account of his injuries, as described above. The CICB accepts these Reports for the purpose of compensation in this matter.

21The Applicant’s oral testimony was inherently consistent with his written submissions made in his Application. He was straight forward and honest in responding to questions from the CICB. He was not evasive in his responses. His demeanour was that of a reliable and credible person. His testimony was convincing, credible and reliable. Hence, the CICB accepts the Applicant’s account of his physical and emotional/psychological injuries and their resultant impact on him, as described and claimed by him, and which is also supported by Medical Record provided by the applicant to the CICB.

Compensation

22In 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 CICB "... 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 CICB is that it must be "in accordance with this Act". No enumerative list of factors informs the exercise by the Board of its discretion.

23Section 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

24After reviewing the evidence in its totality, both oral and documentary, the CICB finds the Applicant’s testimony credible and accepts his testimony both in terms of the incident and the injuries as described above.

25Based 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 physical injuries, as described and claimed by him in her Application.

26In assessing compensation for pain and suffering, the CICB has considered:

a) The nature of the assault causing injuries to the Applicant;

b) The possible emotional/psychological impact of the assault;

c) The ongoing impact on the Applicant’s overall health, relationships and productivity.

27It is important to note that the CICB has wide discretion to determine whether or not to award compensation to an applicant 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 an applicant 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.

28After 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

29The CICB considered the Applicant’s claim in the amount of $52.00 in respect to travel to hearing costs. The CICB finds such costs to be both reasonable and within the context of the Act and, therefore, awards $52.00 for such costs.

AWARD

30The CICB now orders payment as follows:

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

Section 22 - Travel to hearing cost $ 52.00

TOTAL CURRENT AWARD AND COST: $6,052.00

31The 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

32THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $6,052.00