CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Pamela Arnott
Indexed as: (Re) 1608-04594
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, RSO 1990, c. C.24, as amended (the “Act”). The Applicant is seeking compensation for expenses, loss of income, and pain and suffering as a result of physical assault that occurred on [date], 2016 where he sustained physical and psychological injuries. The incidents were reported to the Police and resulted in convictions.
DECISION
2The CICB approves the claim and awards the Applicant the sum of $11,550.00 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 against two of the four Offenders 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. expenses actually and reasonably incurred as a result of his injury pursuant to subsection 7(1)(a) of the Act; and
b. pecuniary losses resulting from his injury and any other reasonable expense that, in the opinion of the CICB, it is reasonable to incur, pursuant to subsection 7(1)(f) 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: indictment and record of court proceedings for Offender 1, [Name] Police Reports dated [date], 2016 and [date], 2016, media report of [date], 2016, Hospital Reports (trauma, assessment, anesthesia) from [Name] Health Sciences Centre dated [date], 2016, medical report from Dr. [date] dated [date], 2016, Canada Revenue Agency income tax information from 2016, Employer’s Report and pay stubs from [Employer] dated [date], 2016, victim impact statement (undated) and Application from the Applicant.
7The Police Reports indicate that the Offender 1 lived with the Applicant, his girlfriend and her mother. The incident in question was preceded on [date], 2016 by a dispute at the home where Offender 1 assaulted the Applicant and his girlfriend. The [Name] Police Report of [date], 2016 indicates that the Applicant, his girlfriend and other friends were leaving a nightclub in the early morning of [date], 2016 when they were surprised from behind by the Offenders. As the Applicant and his party attempted to access their vehicle, the Applicant was stabbed in the neck, face and armpit. The Applicant’s girlfriend attempted to stop the attack and was slashed on the wrist and thumb by Offender 2. Offender 1 spat on, slandered with racial epithets, and threatened the Applicant and his girlfriend with death before fleeing the scene.
8The Application and the Police Report indicate that the Applicant was taken to [Name] Hospital and received 100 stiches to his face and neck. The Reports from [Name] Hospital note that the Applicant had deep lacerations over his face, chin, neck and armpit. These lacerations extend vertically along the entire left length of face and neck and horizontally from his ear to his chin. The reports indicate that the Applicant lost 0.5 L of blood and was still bleeding when he reached Hospital. The Applicant underwent surgery on the morning of [date], 2015 to close the lacerations. The stiches from that surgery were removed on [date], 2015.
9He has permanent facial and neck scars as well as occasional bleeding. He reported to Dr. [Name] that he still has recurrent headaches since the original injury and persistent numbness at the site of the lacerations scars. He was treated in [date] 2016 for a possible skin infection of the scars.
10The Applicant has reported to Dr. [Name] that facial pain has stopped him from sleeping and working. The Applicant believes that he has nerve damage as he has lost feeling along his face and neck.
11The Applicant indicates that he suffers from continuous fear for himself and his family. He suffers from migraines for which he self-medicates with over-the-counter pain relief. He has insomnia, daily flashbacks and nightmares about the incident and has taken several safety measures to protect his family. The scars have affected his self-confidence and appearance such that he is uncomfortable going out due to the facial scars. He expresses a wide range of emotions from fear to sadness to anger. He believes that he suffers from depression.
12The facial pain has also affected his ability to earn a living as a construction worker. He is no longer able to work with a jackhammer due to the impact of the vibrations on his neck and head. He was laid off in 2016.
13The Applicant indicates that he missed two weeks of work in 2016 due to the incident, at a loss of $1100. The report from the Canada Revenue Agency indicates that this loss is in the amount of $557.00 for two weeks.
14The Applicant also indicated that he incurred ambulance charges as well as regular medication costs. No receipts were provided for these expenses.
15The Police Reports indicate that there were numerous charges, including aggravated assault, attempted murder, assault with a weapon, assault causing bodily harm, and accessory after the fact against Offenders 1 and 2 and the Alleged Offender. Offender 1 was convicted of one count of assault causing bodily harm in regards to the Applicant. Offender 2 was convicted of assault with a weapon.
ANALYSIS AND DECISION
16For the following reasons the CICB grants the Application.
17Section 11 of the Act provides that proof of conviction shall serve as conclusive evidence that the offence has been committed. The CICB accordingly finds the Applicant to be a victim of a crime of violence in respect to the incident involving the Offenders.
18We accept the evidence of the Applicant that he suffered physical and psychological injuries as a result of a crime of violence. Therefore, the CICB finds that the Applicant is compensable under the Act.
19The injuries to the Applicant include significant facial scarring, facial pain, and nerve damage. The psychological injuries to the Applicant are equally serious and include insomnia, loss of self-confidence, undiagnosed depression, hyper-vigilance and social withdrawal.
20In making an award for pain and suffering, the CICB has considered the location of the scars and their impact on the Applicant’s self-confidence and ability to work. The CICB has also considered that there were multiple Offenders, and that the assault included death threats. The CICB has considered the scope of medical intervention required to close the lacerations and the possibility of additional surgery to deal with the on-going facial pain. The CICB has considered the emotional injuries to the Applicant including hypervigilance, depression, fearfulness, loss of confidence and social withdrawal. The CICB has also considered the racial slurs made towards the Applicant. Having considered all these factors, the CICB makes an award for $11,000.00.
21The CICB generally requires receipts and/or other supporting documentation for any expenses that are claimed, both to verify the amounts claimed and to confirm that such costs were not covered by other sources, such as private insurance. In the absence of such evidence, and having found no compelling reason to deviate from its usual practice in this instance, the CICB denies the expense claims for ambulance, locks and medication costs.
22The CICB generally awards compensation only to cover expenses related to treatment of the injuries sustained (i.e. hospital, medication or therapy expenses) and not for expenses related to personal items such as damage to a car. Having found no compelling reasons to deviate from its usual practice in this instance, the CICB declines to award compensation for the Applicant’s claims in respect to the Applicant’s vehicle.
23The CICB has considered the Applicant’s income loss claim. It is the CICB’s practice to reimburse income loss to a maximum of $1,000.00 per month or $50.00 per day and having considered the particular circumstances of this case, the CICB finds no compelling reason to deviate from that practice. Accordingly, the CICB now awards $550.00 for income loss (11 days @ $50.00 per day).
AWARD
24The CICB orders payment as follows:
Subsection 7(1)(b) Income Loss $ 550.00
Subsection 7(1)(d) Pain and Suffering $11,000.00
TOTAL AWARD $11,550.00
PAYMENT
25THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $11,550.00
DATED at Toronto this 19th day of October, 2017.
Pamela Arnott, Member