Re 1512-01648, 2017 ONCICB 222

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Jo-Anne Hughes

Date: August 14, 2017

Indexed as: (Re) 1512-01648

ORDER

Introduction

1In this case, the Applicant claimed he was injured as a result of an incident of arson at an apartment building in [City].

2In this case, the CICB is required to determine whether a crime of violence has occurred as per section 5(a) of the Act; what injury, if any, arose from it; and the relevant circumstances affecting whether or not compensation should be awarded and if so, the amount.

Incident

3In his November 2015 submission to the CICB, the Applicant wrote that he has no recollection of the incident as he was taken unconscious from the scene to the Hospital. Subsequently, he learned that the fire was started in another apartment in the building by an Alleged Offender who allegedly committed suicide.

4The Applicant wrote that he engaged a lawyer to contact police about this incident and that resulted in him being able to confirm that Police had performed a criminal investigation into this incident.

Police Report

5The CICB received a report from the [Name] Police Service in support of the Applicant’s claim. Police confirmed on the date of the incident, the Alleged Offender was found dead at the scene and video surveillance showed some of his activities before the fire started. Police also confirmed the Applicant was taken to Hospital in serious condition and he had been intubated to help him breathe.

6As a result of their investigation, Police determined that the Alleged Offender caused the fire which resulted in the injuries to the Applicant. Since the Alleged Offender was deceased, Police described this incident as criminal negligence causing bodily harm and arson which resulted in the death of the Alleged Offender and injuries to the Applicant and one other person.

7The CICB also received a copy of a detailed Report from the investigation into the cause of the fire. Investigators found that the fire was started with “the deliberate application of open flame” which led them to classify this fire as incendiary (i.e. intentionally set or arson).

Injuries

8In his submission to the CICB, the Applicant wrote that he was hospitalized for nearly two months as a result of suffering from smoke inhalation which led to respiratory failure. His voice box was “irreparably damaged” and he had tubes inserted into his legs to assist with blood flow. His breathing system was damaged and now he needs a walker to move around.

Medical Reports

9The CICB received several reports form the [Name] Health Sciences Centre which supported the Applicant’s claim. Upon arrival at the scene, ambulance attendants found the Applicant lying on the ground, with the fire department performing CPR and the Applicant was in distress with “vital signs absent”. Attendants provided the Applicant with oxygen ventilation, which quickly stabilized him for transport to the Hospital where he was admitted with a “post inhalation injury and cardiac arrest”. The Applicant was immediately intubated to assist with his breathing.

10The discharge report from [Hospital] confirmed the Applicant’s injuries and prognosis. As previously noted, the Applicant had “post inhalation” injury to his lungs and a cardiac arrest. Secondary to this, the Applicant had renal (kidney) failure and atrial fibrillation (heart rhythm issues). Prior to this incident, the Applicant had a medical history of coronary artery disease, CVA (stroke), hypertension, dyslipidemia, PVD (circulation disorder) and a history of alcohol dependence and abuse.

11[Hospital] reported that the Applicant had a “long and complicated” time in the ICU. He was weaned-off the ventilator but required a temporary tracheostomy. His kidney failure meant he had to go on dialysis three times a week and he was transferred to another Hospital to manage his ongoing renal issues.

12The Applicant entered [Hospital] (rehab) on [date], 2013 and was discharged three and a half months later. The main purpose of this rehab was to manage the Applicant’s hemodialysis which was discontinued when his renal functions healed.

13A Medical Report from Dr. [Name] (the Applicant’s primary care physician) confirmed his initial treatment at [Hospital] and rehabilitation at [Hospital] with serial hemodialysis. The Applicant recovered his renal function by the end of [month], 2014 and he had no further treatment related to his injuries as he had returned to his “pre-traumatic state” by [date], 2014. The Doctor opined that overall, the Applicant suffered for a period of six months following the incident and as a result, he is “permanently less well” than he was prior to this incident. Also, the Applicant “… has inherited a moot degree of qualitative and quantitative compromises of his remaining years: the magnitude of these is precisely described as unknowable”.

Expenses

14The CICB received Direction of Funds for compensation from this Order to be made payable to Anne Marie Frauts Professional Corporation in Trust for the Applicant.

Analysis and Decision

15The fact that there has not been a conviction is not fatal to the Applicant’s claim. Section 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.

16The CICB finds the Applicant, on a balance of probabilities, to be a victim of a crime of arson, and therefore, a victim within the meaning of section 5(a) of the Act.

17In assessing compensation for pain and suffering, the CICB has considered the nature of this incident and how it affected the Applicant. In this case, the Applicant was seriously injured as a result of the Alleged Offender’s arson which resulted in the Applicant being removed from the fire with vital signs absent. His lungs were damaged with smoke inhalation, he had renal failure and he went into a cardiac arrest. He was hospitalized in ICU for nearly two months and then he spent another few months in a rehabilitation hospital getting his kidney function normalized. The CICB also acknowledges that the Applicant had a number of pre-existing medical issues which were summarized above. His Doctor concisely noted that the Applicant suffered for a period of six months following the incident and he is now “permanently less well” with an unknowable degree of “qualitative and quantitative compromises of his remaining years”.

18The Applicant’s claim was supported with Reports from Police, two Hospitals and a Doctor. Considering this evidence and the submissions by the Applicant, the CICB assesses this award at $11,000.00.

Award

19The CICB orders payment as follows:

Section 7(1)(d) Pain and Suffering $11,000.00

TOTAL AWARD $11,000.00

20The 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

21THE CICB ORDERS that the following sums be paid forthwith to:

Anne Marie Frauts Professional Corporation in Trust for AG $11,000.00