CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Veda Rangan
Indexed as: (Re) 1612-00711
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 expenses, loss of income, pain and suffering as a result of physical assaults, that occurred on [date], 2014 where he sustained physical and psychological injuries. The incidents were reported to the Police and Offender 1 was convicted of assault on [date], 2015 and was sentenced to 12 months of probation and, given a suspended sentence. Offender 2 was also convicted on charges of assault and was sentenced to 18 months prohibition and was also given a suspended sentence.
DECISION
2The CICB approves the claim for pain and suffering and awards the Applicant the sum of $8,000.00 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. expenses actually and reasonably incurred as a result of his injury pursuant to subsection 7(1)(a) of the Act
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.
c. any benefit, compensation or indemnity paid or payable to the Applicant from any source other than social assistance pursuant to subsection 17(3) 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:
a. Police Report dated 23/02/2017,
b. Hospital Records from [Name] Health Services,
c. Medical Report dated [date] 2016 from Dr. [name] his Physiotherapist,
d. Medical Report dated [date] 2017 from his Family Physician
e. a second report form his Physical Therapist dated [date] 2017
f. copies of expense claims and receipts for travel lodge hotel, virgin mobile bill.
Police Report
7On [date], 2014 the Applicant and his cousins (the Offenders) were all consuming beer and wine, listening to music and conversing casually with one another. After a while the topic of a deceased relative had arisen and was being discussed primarily between the two Offenders who seemed to get emotionally worked up over the issue. Without warning or provocation Offender 1 turned his anger towards the Applicant and physically attacked him by grabbing a hold of him while he sat on a sofa and commenced punching, kneeing and kicking him about the face, head, and body.
8He was verbally accusing the Applicant of having involvement in the death of the deceased relative and furthermore was yelling at him that he was a rat. The Applicant did not retaliate.
9The attack ceased after approximately an hour or even possibly an hour and a half and Offender 2 left to whereabouts unknown and Offender 1 came out of his rage and picked up the Applicant in a hug and began apologizing for the savage beating he inflicted upon him. The Applicant was experiencing a tremendous level of pain and discomfort and had neither the strength nor energy to attempt further escape. Offender 2 then left and did not return.
10The Applicant attempted to contact several people through different means to come over and rescue him unsuccessfully, but however was able to contact his mother, who was unable at the time to come and pick him up due to her vehicle being broken down. The Applicant later made his way to a bedroom in the trailer and fell asleep being overcome by the pain he was suffering.
11The next morning he was taken from the trailer by his mother and sister. Although the Applicant did not want any police or medical involvement, his mother took matter into her own hands and contacted Police. Due to the level of risk and the fact that a weapon was used an investigation was started.
12Offender 1 was charged with an assault, assault with weapon and forcible confinement and on [date],2015 he was convicted of assault and sentenced to 18 months probation and was given a suspended sentence.
13Offender 2 was charged with assault and forcible confinement on [date] 2015 was convicted of assault and sentenced to 12 months probation and was given a suspended sentence.
14Police Synopsis reports that the Applicant had sustained injuries to his face, mostly located on the right side which consisted of swelling with a small scuff mark on his left temple area. The Applicant complained that his head was tender as he sustained several punches to that area and as well as his upper torso, chest, back, hip right shoulder, and right kidney area which were visibly bruised. He had slight swelling and small scuff marks on his throat which were consistent with being grabbed by in that location. The Applicant complained his right leg was sore, however no visible injury could be observed.
[Name] Health Services Hospital Report
15The Report states that the [age] year old Applicant was punched and kicked by his cousins and had sustained multiple bruises on the right side of his body, shoulder and back and was suffering from generalised pain. There was no evidence of fracture.
Report from the Family Doctor
16The Report states that the Applicant had sustained injury to his lower back when he was kicked with steel toed boot. A knife was also held to his throat. He was treated with pain killer and was recommended to undergo physiotherapy treatments. Prognosis is reported to be good.
Physiotherapy Report
17At the initial assessment the Applicant was educated regarding back care and was given exercise to strengthen his back. Prognosis is reported to be fair to poor due to the Applicant’s concurrent anxiety and fear of movement.
Expense claims and receipts
18The Applicant was awarded $1,000.00 on April 27, 2017 pursuant to section 14 of the Act. The CICB was in receipt of 2 receipts for the cost of the Applicant’s hotel stay at the [hotel] totaling to $414.67. The Applicant’s mother indicated in her conversation with the CICB on March 28, 2017 that in order for the Applicant to attend his doctor’s appointments in [City], he required an overnight stay at the hotel.
ANALYSIS AND DECISION
19For the following reasons the CICB grants the Application.
20Based upon the evidence provided and the Offenders' conviction in respect to the incident, the CICB is persuaded that the Applicant was a victim of an assault by multiple perpetrators that caused him to suffer physical injury including injuries to his face, body and lower back requiring medical attention and physiotherapy treatments. He had sustained psychological injury including sleep disturbances, fear, loss of appetite and loss of weight, fear of going out, sought social isolation, and the negative impact on his education. 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 assault and forcible confinement by his cousins, the Offenders.
21In assessing pain and suffering the CICB has considered the nature of the assault by multiple perpetrators, the fact that a weapon was used in the commission of this crime, the nature of the physical injuries requiring medical attention and the emotional impact of the same on him. In consideration of his victimization the CICB awards the Applicant $8,000.00 for pain and suffering.
22The Applicant had made reference to the possibility of starting a civil court action against the Offenders. The CICB has not received as of today’s date copies of Statement of Claim, Statement of Defence, or any settlement documents that were issued to him. If the Applicant is successful in the civil action, he must reimburse the CICB for any compensation he receives from CICB.
Expenses
23With regards to the Applicant’s claim for cost of stay at the [Name] hotel in the amount of $414.67, the 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 hotel stay. 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 hotel costs.
24Since the evidence indicates that other factors have contributed to the Applicant’s overall emotional difficulties and need for treatment under these circumstances the CICB finds it reasonable to award a travel to treatment cost in the amount of $82.72 calculated as distance travelled one way from Applicant’s home to doctor’s office is 51.7km. [51.7x2 (roundtrip) = 103.4x2(trips) = 206.8x.40].
AWARD
25The CICB orders payment as follows:
Subsection 7(1)(a) Physical therapy (Section 14 Award) $1,000.00
Subsection 7(1)(a) Travel to treatment expense $ 82.72
Subsection 7(1)(d) Pain and Suffering $8,000.00
TOTAL AWARD $9,082.72
Less: Section 14 Award – already paid/authorized -$1,000.00
TOTAL CURRENT AWARD $8,082.72
PAYMENT
26THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $8,082.72
DATED at Toronto, this 21st day of October, 2017.
Veda Rangan, Member