CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: M. Saleem Akhtar
Indexed as: (Re) 1611-00324
ORDER
INTRODUCTION
1This is an Application by the Applicant 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 for the injuries that he claims he sustained as a result of the assault committed against him on [date], 2015, in the Province of Ontario. The Applicant is also claiming incident-related expenses. The Offender was convicted in this matter.
DECISION
2The CICB approves the claim made by the Applicant in relation to the assault committed against him on [date], 2015 by the Offender, as mentioned above, and awards the Applicant the sum of $5,000.00 as compensation for pain and suffering, for the reasons set out below. The CICB also approves $3,307.99 in respect to incident related expenses.
EVIDENCE
Applicant's written submissions regarding the incident
3In his Application before the CICB, the Applicant described the incident under the heading "Details of the Crime" as follows:
I'm from [outside Canada] and was visiting [City] on business (...) I was walking down by the boardwalk near the [Name] Ferry Terminal (...) When I approached the ticket booths, I observed the Offender yelling at random passerby (...) When I exited the ticket area, he was gone. I started a phone call home to my wife and began to walk along the boardwalk. As I rounded the corner, I observed the Offender again. He was still yelling indiscriminately. I diverted my path to give him a wide berth, but while I was distracted with my call, he ran up and struck me in the face before I could dodge him, knocking my sunglasses off and breaking my nose. I stood there facing him, blood pouring from my nose and he continued to yell. He started to approach me again, but I was able to avoid him. He started to pursue me and I began to run, making my way back to the ferry terminal, at which point he stopped pursuing me. I summoned help and together with the security officer at the ferry, we called police and paramedics. Later, I went to the hospital for treatment and then to the police station to give a video statement. When I returned home, I had to have surgery to have my nose reset.
Applicant's written submissions regarding his injuries
4In his Application, under the heading "Details of Injuries", the Applicant described his injuries as follows:
My nose was broken during the assault and I suffered concussion. I cut my trip to [City] short and returned home. I underwent surgery to reset my nose. I lost one week of work to recover from the surgery. I was initially in shock from the incident and went through a period of depression in the aftermath lasting approximately 2 months.
Police Report
5The Police Report, on file, corroborates the Applicant's version of the incident and notes the Offender and the Applicant are complete strangers to each other. The Applicant is a visitor from [outside Canada]. The Applicant sustained "broken nose."
6After due investigation, the Offender was charged with and later convicted for assault cause bodily harm contrary to the provisions of section 267 of the Criminal Code of Canada, RSC 1985, c.C-46.
ISSUES
7Pursuant 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 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 incident-related expenses, as requested by the Applicant.
ANALYSIS AND DECISION
8The 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.
9In 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
10Section 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.
11Hence, 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.
c) Consider incident-related expenses, as requested by the Applicant.
Nature of Injuries
12The Applicant claims that he sustained both physical and emotional injuries as described in paragraph 4 of this Order.
13In support of the Applicant's physical injuries claim, he has submitted Treatment/Assessment Reports from [Name] Hospital. These Reports corroborate the Applicant's version of his injuries. The CICB accepts these Reports for the purpose of compensation in this matter.
14In terms of the emotional impact, the Applicant has not provided any report/assessment from any medical professional such as family physician, social worker/therapist or other health professionals/caregivers. In the absence of any professional medical advice/assessment, it is difficult, if not impossible, to truly assess any long-term impact of the assault. Nevertheless, the CICB does understand that such an assault does leave emotional scarring on applicants, at least for some amount of time.
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 Board (1975), 1974 ONCA 439, 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 he sustained both physical and emotional injuries, as described and claimed by him in his 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 possible 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 ON CTGD 10629, 1995 OJ 1464 (Div. Ct) at para 5. The Act is not intended to make a victim for compensation whole or to provide full indemnity to a victim. Awards are not paid by the wrongdoer as would be the case if a victim 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 $5,000.00 as compensation for pain and suffering.
Expenses
21The CICB has considered the Applicant's claim in the amount of $3,307.99 as out-of-pocket expenses incurred in relation to the treatment of injuries caused by the assault occurring on [date], 2015. The Applicant has provided proof of out-of-pocket expenses. The CICB finds such costs to be both reasonable and within the context of the Act and, therefore, awards $3,307.99 for such costs.
AWARD
22The CICB now orders payment as follows:
Section 7(1)(a) Treatment expenses $3,307.99
Section 7(1)(d) Pain and Suffering $5,000.00
TOTAL CURRENT AWARD: $8,307.99
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.
24THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $8,307.99
DATED at Toronto this 16th day of October, 2017
____________________________________________
M. Saleem Akhtar, Member