CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: M. Saleem Akhtar
Indexed as: (Re) 1603-02905
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 due to the injuries that she sustained as a result of the assault committed against her on [date], 2014, in the Province of Ontario.
DECISION
2The CICB approves the claim made by the Applicant in relation to the physical assault committed against her by the Alleged Offender and awards the Applicant the sum of $8,000.00 as compensation for pain and suffering, for the reasons set out below. The CICB also approves an amount of $66.04 as expenses for prescription drugs.
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 her 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 already incurred incident related expenses, as requested by the Applicant.
EVIDENCE
Written submissions
4In her Application before the CICB, the Applicant described the incident under the heading “Details of the Crime” as follows:
Someone stabbed me from behind. Next they stole my purse and ran away.
5In her Application before the CICB, the Applicant described her injuries under the heading “Details of Injuries” as follows:
I am scared to be outside in the dark and can’t go alone anymore. Also, I am nervous to be in public and always have to look back if someone is behind me…Can’t talk to people anymore. I also can’t sleep well since it has happened because of my nightmares. I live withdrawn. My scar…still haunts every day. It will remind me on what happened the rest of my life and always when I look in the mirror…sport activities are also hard for me because my scars hurt every time…I feel depressed and don’t like my life anymore…Before all this happened, I was a happy girl…I could never imagine that this could / would happen to me…
Police Report
6The police questionnaire, on file, reports that
[the Applicant] is of German Nationality and was in [City] for school in order to learn English. [The Applicant] was attacked in a dark pathway on the way to her home. [The Applicant] was stabbed and thrown to the ground and robbed of her belongings. [The Applicant] has been very cooperative with police.
ANALYSIS AND DECISION
7With respect to an incident of physical assault alleged by the Applicant to have occurred on [date], 2014, the fact that there has not been a conviction is not fatal to the Applicant’s claim.
8Section 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 or death.
Crime of Violence
9The 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 Criminal Code of Canada RSC 1985, c.C-46 (the “Code”).
10In 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. The standard of proof in cases before the CICB is “on a balance of probabilities.” Clear, cogent and convincing evidence is required to satisfy the standard of proof. In essence, the CICB must determine whether the Applicant’s allegations regarding the incident are substantially the most probable version of events to have occurred. The CICB must not consider the Applicant’s evidence in isolation; rather, the CICB is required to assess the totality of the evidence presented.
11Under the legislation, it is the CICB that is required to decide whether a relevant offence, “a crime of violence”, has taken place. It is for the CICB to decide the matter, on the evidence adduced before it, and upon proper construction of its statutory mandate.
12Based upon a careful review of the documentation, on file, the CICB finds the Applicant, on a balance of probabilities, 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 she sustained physical and emotional injuries.
Nature of Injuries
13The Applicant claimed that she sustained both physical and psychological injuries resulting from an incident of stabbing assault perpetrated against her by the Alleged Offender on [date], 2014. The Applicant’s account of her injuries has already been described above.
14In support of her injuries claim, the Applicant has provided Treatment and Assessment Reports from [Name] Hospital, photos of her injuries, and her Applicant Impact Statement. The Hospital Report confirms that the Applicant “was stabbed. CT scan of chest and abdomen showed moderate sized L hemo-pneumothorax, splenic laceration, diaphragm injury, and possible stomach injury”. These Reports corroborate the Applicant’s account of her physical and emotional/psychological injuries, as described above. The CICB accepts these Reports for the purpose of compensation in this matter.
Compensation
15In 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 CICB (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 Board "... 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 Board is that it must be "in accordance with this Act". No enumerative list of factors informs the exercise by the Board of its discretion.
16Section 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
17Based 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 she sustained physical injuries, as described and claimed by her in her Application.
18In assessing compensation for pain and suffering, the CICB has considered:
a) The nature of the assault causing injuries;
b) The emotional/psychological impact of the assault;
c) The ongoing impact on the Applicant’s overall health, relationships and productivity.
19It is important to note that the CICB has wide discretion to determine whether or not to award compensation to a victim 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 an applicant. Awards are not paid by the wrongdoer as would be the case if an applicant 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.
20After 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, and to maintain consistency across the CICB, the CICB awards the Applicant $8,000.00 as compensation for pain and suffering.
Expenses
21The CICB considered the Applicant’s claim in the amount of $66.04 in respect to prescription drugs, for which proof of out-of-pocket expenses was provided. The CICB finds such costs to be both reasonable and within the context of the Act and, therefore, awards $66.04 for such costs.
AWARD
22The CICB now orders payment as follows:
Section 7 (1) (a) prescription drugs costs $ 66.04
Section 7 (1) (d) Pain and Suffering $8,000.00
TOTAL CURRENT AWARD: $8,066.04
23The 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
24THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $8,066.04
DATED at Toronto this 19th day of July, 2017
______________________________________
M. Saleem Akhtar, Member