(Re) 1611-00476, 2017 ONCICB 167

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: M. Saleem Akhtar

Date: July 04, 2017

Indexed as: (Re) 1611-00476

ORDER

INTRODUCTION

1This is an Application by the Applicant 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 accruing from the injuries sustained by the victim, as a result of the assault committed against him on March 29, 2015, in the Province of Ontario. The Applicant is also seeking loss of income for being off-work due to the assault. The Offender was convicted of assault cause bodily harm and utter threats in this matter.

DECISION

2The CICB approves the claim made by the Applicant in relation to the assault committed against him on [date], 2015 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 $450.00 award for loss of income.

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 loss of income, as requested by the Applicant.

Written submissions regarding the incident

4In his Application before the CICB, the Applicant described the incident under the heading “Details of the Crime” as follows:

Sitting at living room table playing cards, front door slammed open. Guy came in house yelling swearing about his sister leaving him at bar. He started threatening his sister then grabbed beer bottle and threw at which struck me in left side of the face. Got rushed to hospital; Threatened me if told anyone, he would assault me again.”

Written submissions regarding injuries

5In his Application, under the heading “Details of Injuries”, the Applicant described his injuries as follows:

Multiple cuts on left side of face which required stitches on eye brow and under eye; left eye swollen shut, bruised; bleeding around eye; lost some vision in left eye for multiple months; blurred vision (liquid build-up behind centre of eyeball); constant headache for at least a week; fractured orbital bone; concussion symptoms; scared to go out anywhere after the incident; always looking over my shoulder; constantly flinching away from normal things; scared if Offender would retaliate after police were involved; couldn’t work for two weeks; couldn’t play sports for months after incident; still second guessing myself whenever in public; nervous about going out with friends at night; still have scars on face from attack; embarrassed about scars when people see me; still have pain in cheekbone; vision took almost a full year to get back to normal; frustrated how Offender didn’t have any reason for assaulting me and I have to live with physical and emotional pain from Assault!

Police Report

6The Police Report, on file, corroborates Applicant’s version of the incident. The Offender was convicted of assault cause bodily harm and utter threats contrary to the provisions of sections 267(b) and 264.1(1)(a) respectively of the Criminal Code of Canada RSC 1985, c.C-46 (the “Code”).

ANALYSIS AND DECISION

7The 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.

8In 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

9Section 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.

10Hence, the remaining issues to be decided by the CICB in this matter are as follows:

a) The nature and extent of the 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 loss of income claim, as requested by the Applicant;

Nature of Injuries

11The Applicant sustained physical injuries as described above.

12In support of the Applicant’s injuries claim, he has submitted Treatment and Assessment reports from [Name] Hospital, his Optometrist, his Ophthalmologist and photos of his physical injuries. These Reports corroborate Applicant’s claim of his physical injuries resulting from the assault. The CICB accepts these Reports for the purpose of compensation in this matter.

13The Applicant did not identify/claim any long term emotional injuries/emotional impact of the assault on him. Also, there is no medical/treatment report, on file, addressing any long term emotional impact. Nevertheless, the CICB understands that such incidents do leave impact on the lives of victims, at least for some amount of time.

Compensation

14In 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.

15Section 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

16Based 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 his Application.

17In assessing compensation for pain and suffering, the CICB has considered:

a) The nature of the assault causing the injuries;

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

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

18It 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.

19After 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.

Loss of income

20The CICB has considered the Applicant’s income loss claim in the amount of $700.00. According to the evidence provided by the Applicant (Medical Report) and which is available on file, the Applicant had been off-work due to the assault from [date], 2015 to [date], 2015, a period of 9 working days. During this period, the potential net earnings, as per his Employer, would have been $1,526.80. During the same period, the Applicant received benefits from other sources such as Employment Insurance, in the amount of $986.18. Hence, his net loss would be $1,526.80 - $986.18 = $540.62. It is the CICB’s practice to reimburse income loss to a maximum of $1,000.00 per month or $50.00 per day and having considered the particular circumstances of this case, the CICB finds no compelling reason to deviate from that practice. Accordingly, the CICB now awards $450.00 for income loss (9 days @ $50.00 per day).

AWARD

21The CICB now orders payment as follows:

Section 7 (1) (b) Loss of Income $ 450.00

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

TOTAL CURRENT AWARD: $6,450.00

22The 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

23THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $6,450.00