(Re) 1612-00771, 2017 ONCICB 191

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: M. Saleem Akhtar

Date: July 19, 2017

Indexed as: (Re) 1612-00771

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 by the victim, as a result of the assault committed against her on [date], 2016, in the Province of Ontario.

DECISION

2The Board approves the claim made by the Applicant, in relation to the assault committed against her on [date], 2016 by the Offender, as mentioned above, and awards the Applicant the sum of $4,000.00 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 that on [date], 2016 while she was performing her duties as a Correctional Officer at [Name] Detention Centre, she sustained injuries in an attempt to bring under control the Alleged Offender who was an inmate at the Centre and was engaged in an assaultive behaviour and was yelling profanities and threats to the Detention Centre staff. The Alleged Offender was kicking her legs and was hitting with her arms and was trying to spit and bite. As the Applicant was trying to re-adjust the Alleged Offender’s handcuffs to secure the latter safely to her cell, the Alleged Offender grabbed and clawed at the Applicant’s hands and intentionally twisted and pinched the Applicant’s hands, causing her injuries.

5In her Application, the Applicant described that she sustained ligament and tendon damage requiring a cast/splint for about 13 weeks. Her left hand was swollen and she had to endure a lot of pain. She could not use her hand for quite some time due to trauma to thumb, swelling, pain and inflamed arthritis. She developed tingling sensation in her fingers. She had lack of strength and range of motion for quite some time. She still has issues to some degree. Emotionally, she felt depressed and had a feeling of loss of independence due to relying on others, at least for some time during recovery stage. She had difficulty sleeping and lost self-esteem. Her marriage broke down due to the stress and her emotional state of mind resulting from the incident. Return to work also caused her some anxiety.

Police Report

6The matter was not reported to the Police. However, there was an Initial and Internal Report generated at the Detention Centre. If the Alleged Offender had been charged, it would have been assault peace officer contrary to the provisions of section 270 of the Criminal Code of Canada RSC 1985, c.C-46 (the “Code”).

ANALYSIS AND DECISION

7With respect to an incident of physical assault alleged by the Applicant to have occurred on [date], 2016, 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 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 both physical and emotional injuries.

Nature of Injuries

13The Applicant claimed that she sustained both physical and psychological injuries resulting from an incident of assault against her by the Alleged Offender on [date], 2016. The Applicant’s account of her injuries has already been described above.

14In support of the Applicant’s injuries claim, she has submitted Treatment and Assessment Reports from [Name] General Hospital, her Physiotherapist, her Health Care Professional at the workplace, and her Applicant Impact Statement describing to what degree she has been impacted by the assault. These Reports corroborate Applicant’s claim of her injuries resulting from the assault. 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), 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 possible emotional/psychological impact of the assault;

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

d) The CICB also considered that the Applicant was assaulted and she sustained injuries in her line of duty working as a Correctional Officer at the time.

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 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 $4,000.00 as compensation for pain and suffering.

AWARD

21The CICB now orders payment as follows:

Section 7 (1) (d) Pain and Suffering $4,000.00

TOTAL CURRENT AWARD: $4,000.00

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 $4,000.00