(Re) 1601-02272, 2017 ONCICB 210

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Veda Rangan

Date: July 31, 2017

Indexed as: (Re) 1601-02272

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, R.S.O. 1990, c. C.24, as amended (the “Act”). The Applicant is seeking loss of income, pain and suffering as a result of physical assault, that occurred on [date] 2014 where he sustained physical/psychological injuries. The incidents were reported to the Police and the Offender pled guilty to attempt murder.

DECISION

2The CICB approves the claim for pain and suffering and awards the Applicant the sum of $9,000.00 for the reasons set out below.

ISSUES

3A conviction may be taken as conclusive evidence that an offence has been committed pursuant to section 11 of the Act. Given that there was a conviction in this case, the Applicant is required to prove, on a balance of probabilities, that his injuries are the result of the crime pursuant to subsection 5(a) of the Act.

4The Applicant must provide reliable evidence to support his claims for:

a) income or pecuniary loss incurred as a result of his total or partial disability affecting his capacity for work pursuant to subsection 7(1)(b) of the Act.

HEARING

5The hearing was conducted in writing on the basis of the materials contained in the Applicant’s file.

Documentary Evidence

6The CICB received the following documents with respect to the claim: Police Report dated [date] 2016, Hospital Records from [Name] Health Sciences Centre, Medical Report from Dr. [Name], his family physician, media report from CBC, and WSIB Report dated [date] 2017.

Police Report

7The Police synopsis states that on [date] 2014 Police attended to a report of a shooting call at the bar premises of the [Name]. The text of the call indicated that several shots were fired and that the victim had sustained gunshot wounds to his leg. The perpetrators were last seen running away from the premises east bound. Police attended at the bar and located the victim who was identified as the Applicant. The Applicant confirmed that he had sustained gunshot wounds to his leg. DAS attended and transported the Applicant to [Name] Hospital with non-life threatening injuries.

Incident details from the Application

8The Applicant worked as security at a sports bar called [Name]. Two men entered the bar and the Applicant ejected the two males from the bar. The Applicant states that the Offender then returned and shot him. In spite of the gunshot wound he pursued the Offender who turned and fired two more times however, both bullets missed the Applicant. He was transported to Hospital with non-life threatening injuries.

9Police provided a brief Report confirming that the Applicant sustained gunshot wounds to his leg. The Applicant in his narrative states that he was unable to sleep after the incident, was given to sudden mood swings, became antisocial, and was unable to leave his home. As a result he lost his job, wife left him and he suffered financial loss.

Medical Reports

10The gun shot resulted in injuries to the Applicant’s right knee, right leg, left thigh and left gluteal muscle. He was admitted to [Name] Hospital for the treatment of his wounds. He suffered anxiety and symptoms of PTSD. As of the date of this Report the Applicant’s wounds had completely healed.

11The Report from the [Name] Hospital states that the Applicant had sustained six gunshot wounds to his leg. Radiologic imaging revealed no retained bullet fragments within his body. He had through and through wounds to the left gluteus, left thigh, and right calf. He was hemodynamically stable. He was admitted for overnight observation and for pain control. When assessed the next morning, the Applicant was comfortable on multimodality analgesia. He was ambulating without the need of assistance and had tolerated a regular diet.

ANALYSIS AND DECISION

12For the following reasons the CICB grants the Application.

13Based upon the evidence provided and the Offender’s conviction in respect to the incident, the CICB is persuaded that the Applicant was a victim of gunshot which caused him to suffer minor physical gunshot injury to his leg, thigh and knee requiring medical intervention. The Applicant was emotionally impacted as stated in his narrative to the CICB. In the absence of any therapy report the CICB is unable to assess the seriousness of the emotional impact on him. However the CICB accepts that such an incident would have had some emotional impact on him. As a result, the CICB concludes that the Applicant is a victim within the meaning of s.5(a) of the Act in connection with the gunshot at his place of work.

14In assessing pain and suffering the CICB has considered the unprovoked nature of the assault, the physical injuries sustained resulting in loss of employment and the emotional impact of the same on him. In consideration of his victimization the CICB awards $9,000.00 for pain and suffering.

Loss of Earnings

15With regards to loss of earnings the Applicant is claiming $7,200.00 for the period of his absence from work. The WSIB report on file states that he received a total of $1,794.65 for the period [date] 2014 to [date] 2014. Based on the evidence in the claim brief, 85% of the Applicant’s net earnings were covered through a non-taxable WSIB benefit which results in income tax implications that are unique to each recipient of such benefits. Furthermore, during the period of disability, the Applicant did not incur expenses that are usually associated with working outside of one’s home such as, business attire, dry cleaning, public transit, gas and parking, day care for children, restaurant meals, and incidentals. As a result, in the absence of evidence to the contrary, it is the CICB’s view that the Applicant did not sustain an actual wage loss since the 15% difference is offset by the cost savings related to the above factors. The Applicant’s wage loss claim is thereby denied.

AWARD

16The CICB orders payment as follows:

Subsection 7(1)(d) Pain and Suffering $9,000.00

TOTAL AWARD $9,000.00

PAYMENT

17THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $9,000.00