CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: M. Saleem Akhtar Date: July 19, 2017 Indexed as: (Re) 1612-00595
ORDER
INTRODUCTION
1This is an Application 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 as a result of the multiple incidents of domestic assault committed against her in the Province of Ontario. The Offender was convicted of assault in relation to the Applicant.
DECISION
2The CICB approves the claim made by the Applicant in relation to the assault committed against her by the Offender and awards the Applicant the sum of $5,000.00 as compensation for pain and suffering, for the reasons set out below.
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;
EVIDENCE
Written submissions
4In her Application before the CICB, the Applicant described the incident under the heading “Details of the Crime” as follows: “Please refer to Police Occurrence.”
5In her Application, under the heading “Details of Injuries”, the Applicant described her injuries as follows:
My head was bleeding. Face was hit. Choked / thrown to the floor / beat / kicked / punched…Mentally abused / paranoia. He is going to kill me / or come after me. Anxiety, depression, insomnia, I am on medication because of [the Offender] and what he did to me. I am seeing a therapist / counsellor to help me with my anxiety, depression / insomnia. I find myself closed in, hard to be social and I leave my home scared of [the Offender]. Therefore, I have a restraining order against him…The impact this has had on my life has stopped me from living my life as a normal person.
Police Report
6The Police Report, on file, indicates that the Applicant and the Offender had been “in an on again, off again relationship” for three years and between them they had “three children together.” The Report discusses two incidents. One incident happened on [date], 2013. In this incident, there was a verbal argument between the two, which ended up the Offender “striking the [Applicant] on the right side of the head with an open hand causing a small cut and swelling to the right side of her head behind her right ear.” The second incident occurred on [date], 2013. This time, the Offender was arguing with the Applicant’s sister. The Applicant took exception to the way he was speaking to her sister and she intervened. The Offender “grabbed the [Applicant] and pushed her to the ground, causing her to bang her head…The [Applicant]… did not require medical attention.” The Offender was charged and later convicted of assault contrary to the provisions of section 266 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.
Nature of Injuries
11The Applicant sustained injuries as described above.
12In support of the Applicant’s injuries claim, she has submitted Treatment and Assessment Reports from her Family Physician and her Social Worker. These Reports corroborate the Applicant’s claim of her physical as well as emotional injuries resulting from the assault. The CICB accepts these Reports for the purpose of compensation in this matter.
Compensation
13In 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.
14Section 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
15Based 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 and emotional injuries, as described and claimed by her in her Application and which is also supported by medical and treatment reports.
16In 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.
17The Applicant’s case was presented in such a way that there is no evidence before the CICB in the documentary evidence from the Applicant and reports from Police which establish separate injuries for each occurrence. Rather, the evidence was presented in such a way that it is impossible for the CICB to establish exactly what injuries resulted from each occurrence and the evidence suggested that the significant emotional and psychological impact of the abuse was cumulative over time.
18The CICB accepts that there was more than one occurrence, but for the reasons set out herein, will make a global assessment for pain and suffering, taking into account the cumulative effect of all the occurrences on the Applicant.
19The CICB’s discretion to assess a “global” award for multiple occurrences was upheld by the Divisional Court in J.T. v Criminal Injuries Compensation Board, (2011) ONSC 2034 (Div.Ct.)
20It 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 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.
21After 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 $5,000.00 as compensation for pain and suffering.
AWARD
22The CICB now orders payment as follows:
Section 7 (1) (d) Pain and Suffering $5,000.00
TOTAL CURRENT AWARD: $5,000.00
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 $5,000.00
DATED at Toronto this 19th day of July, 2017
_____________________________________
M. Saleem Akhtar, Member