CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Pamela Arnott
Indexed as: (Re) 0005-20501
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 an award for expenses, pain and suffering as a result of physical assaults that occurred on [date], 2000 where he claims to have sustained physical and psychological injuries. The incidents were reported to the Police and resulted in charges, but did not result in any convictions.
DECISION
2The CICB approves the claim and awards the Applicant the sum of $9,217.00 for the reasons set out below.
ISSUES
3The absence of a conviction does not mean that the CICB is precluded from making an order of compensation. Subsection 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. The Applicant is required to prove, on a balance of probabilities, not only that he was a victim of a crime of violence but also that his injuries resulted from 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: Police Report dated [date], 2000; Dental Report from Dr. [Name] dated [date], 2000; prescription receipt dated [date], 2000; emergency assessment, triage, imaging, and nursing assessment reports dated [date], 2000; paramedic and ambulance report dated [date], 2000; Medical Report from Dr. [Name] dated [date], 2001; invoice from [Name] Hospital for ambulance services (undated); [Name] Hospital Head Injury Clinic Report dated [date], 2000; submissions from the Applicant’s counsel dated March 3, 2007 and August 29, 2017; Affidavit of the Applicant dated August 28, 2017; Affidavit of Wendy Knebel dated August 28, 2017; media reports from [date], 2000; the Application and letters from the Applicant (undated).
7The Police Report indicates that the Applicant was found, face-down badly beaten, in an alleyway outside a restaurant near his parents cottage on [date], 2000. The Applicant had been seen, at 10 pm, leaving the restaurant in the company of three young people who had been refused alcohol at the restaurant. The Applicant was found at 10:20 pm and taken to the local Hospital.
8The submissions from the Applicant’s counsel indicate that the Applicant was later airlifted to a larger Hospital due to the severity of his injuries. The Applicant indicates that he regained consciousness on [date], 2000 at this larger Hospital. The emergency records indicate that it was not clear at the time whether a weapon had been used in the assault of the Applicant.
9The paramedic report indicates that the Applicant was found with a 1 cm laceration to his head, injuries to his ribs and blood around his nose, mouth and teeth.
10The Hospital Report indicates that the Applicant was suffering from a compression fracture of his skull, bleeding in his brain, and a fracture to his right eye socket. The emergency nursing assessment indicates that he had an abrasion on his right shoulder and swelling and pain in his right wrist.
11The Dental Report from Dr. [Name] indicates that the Applicant had fractures to two teeth (tooth #11, 21) and a chip on tooth #11.
12The Applicant was discharged from hospital on [date], 2000.
13The report from [Name] Hospital of [date] 2000 indicates that the Applicant was uncooperative with the head injury examination for the purposes of preparing a report for this application as well as with an attempt to engage in rehabilitation. The report indicates that the injury was a depressed fracture of 1 cm and some bleeding in the skull.
14The report also notes that the Applicant had a psychiatric condition prior to the assault. The Affidavit from the Applicant’s sister [Sister] indicates that this pre-existing condition was depression.
15The Affidavit from [Sister] indicates that she saw the Applicant in Hospital shortly after the assault ([date], 2000) and witnessed extensive bruising on his face and head. He had stiches near one eye, bruised ribs, and an indentation to his left temple.
16The submissions from the Applicant’s counsel indicate that the Applicant suffered confusion, depression, anxiety, withdrawal, shock and paranoia following the accident. He was unable to continue part-time schooling nor with his plans of employment. The Applicant believes that he “became non-functional” for a period of time due to the assault. He relied on his parents for much of his care in the 3 months following the incident.
17The Affidavit from [Sister] adds to this account by indicating that the Applicant was disoriented, angry, hyper-vigilant about his safety and had limited recollection of the assault. She indicates that the Applicant isolated himself in the family home for a period of 3 weeks after he was released from Hospital.
18The three Alleged Offenders were charged with aggravated assault. No convictions were obtained as no one was able to positively identify the Alleged Offenders.
19The Applicant is seeking reimbursement for travel to obtain his Dental Report for this Application from Dr. [Name]. This travel from [City] to [City] is 178.6 km roundtrip. The Applicant is also seeking the costs of travel to obtain his Report from the Head Injury Clinic of [date], 2000. The Head Injury Clinic is located in [City] and the travel for a roundtrip is 193.6 km.
ANALYSIS AND DECISION
20For the following reasons the CICB grants the Application.
21The fact that the Alleged Offenders were found not guilty of the offence does not mean that the CICB is precluded from making an order for compensation. Section 16(1) of the Act provides that the CICB can make an order for compensation whether or not the person was prosecuted for or convicted of the offence giving rise to the injury. Unlike criminal court, where guilt of an accused person must be proven beyond a reasonable doubt, the CICB operates using the civil standard of proof, that being on a balance of probabilities.
22While there is no conclusive evidence as to who the Alleged Offenders are, this does not prohibit the CICB from making an order of compensation. If the CICB is satisfied, on a balance of probabilities, that the Applicant has been injured as a result of a crime of violence, it can make an order for compensation. Here, the CICB is satisfied on a balance of probabilities that the Applicant was the victim of an assault. Although the Applicant has no memory of the assault, this conclusion is supported by the Police, paramedic and medical evidence from the night of the incident.
23The injuries to the Applicant included several physical injuries (bruised ribs, lacerations to the right eye and face, depressive fracture to the skull) and several serious psychological injuries (increased hyper-vigilance, social isolation, anger, disorientation and anxiety). The psychological injuries have had a long-lasting effect on the Applicant.
24The CICB finds the Applicant to be a victim within the meaning of subsection 5(a) of the Act as a result of a physical assault that occurred on [date], 2000. In assessing compensation for pain and suffering the CICB has considered:
That the Applicant has no memory of the assault;
That the injuries included physical and psychological injuries;
That the psychological injuries were severe and traumatic;
That the injuries aggravated the Applicant’s pre-existing condition;
That the injuries caused the Applicant to stop his part-time university studies; and
That the award is made from public funds.
25Based on these factors, the CICB awards $9,000.00 for pain and suffering.
26The CICB considered the Applicant’s claims in respect to medication, ambulance and hospital costs for which receipts were provided. The CICB finds such costs to be both reasonable and within the context of the Act and will therefore award $217.00 for such costs.
AWARD
27The CICB orders payment as follows:
Subsection 7(1)(a) Expenses $ 217.00
Subsection 7(1)(d) Pain and Suffering $9 000.00
TOTAL CURRENT AWARD $9,217.00
PAYMENT
28THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $9,217.00
DATED at Toronto, this 31st day of October, 2017
Pamela Arnott, Member