(Re) 1612-00900, 2017 ONCICB 320

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: James Graham

Date: November 06, 2017

Indexed as: (Re) 1612-00900

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 pain and suffering as a result of a physical assault that occurred on [date], 2015 where he claims to have sustained physical and psychological injuries. The incident was reported to the Police but did not result in a criminal conviction.

DECISION

2The CICB approves the claim and awards the Applicant the sum of $4,172.48 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.

HEARING

4The hearing was conducted in writing on the basis of the materials contained in the Applicant’s file.

Documentary Evidence

5The CICB received the following documents with respect to the claim:

• The Application,
• [Name] Police Services General Occurrence report,
• [Name] County Health Unit Rabies Investigation Form,
• [Name] Community Care Access Centre (CCAC) documents,
• [Name] Regional Hospital records,
• Medical Report of Dr. [Name], Family Doctor, and
• Legal Assistance of Windsor statement of Disbursements and Submissions.

6The Applicant claims that he was physically assaulted by the Alleged Offender and then bitten by her Rottweiler on [date], 2015. On that day, the Applicant stated that he was walking his own dog in front of his apartment building and that the Alleged Offender was sitting on the ground nearby with her dog, which was not on a leash. When the Alleged Offender saw him, she got off the ground and “got into his face”. While he ignored her, she blocked his way and pushed him, causing him to fall over, and that the Alleged Offender’s Rottweiler bit him on the foot.

7Police Records are consistent with the Applicant’s statement. The investigation revealed that other witnesses confirmed that the Rottweiler was never on a leash and had bitten at least three other people. The Police Report also indicated a history with the Alleged Offender, in that she was hostile towards others, including the officers who attended to investigate the Applicant’s complaint.

8Hospital Records confirm that the Applicant was bitten on the right foot and required emergency treatment and antibiotics on the date of the incident at [Name] Regional Hospital. According to the Applicant’s Family Doctor, healing was slowed by the Applicant’s diabetes.

9The Hospital Records further confirm that the Applicant required 10 stitches and became infected requiring outpatient treatment and daily dressing changes for a month beginning [date], 2015. Although the CCAC records show that it was anticipated that healing would take seven days, the same records show that CCAC treatment continued until [date], 2015.

10The Applicant’s Family Doctor reports that the Applicant took two to three months to achieve full recovery and that he remains more fearful of dogs after the incident. The Applicant also states that he is frightened of the Alleged Offender.

ANALYSIS AND DECISION

11To be compensable pursuant to section 5(a) of the Act, the Applicant must show, on a balance of probabilities, that he was injured as a result of a crime of violence.

12Given the consistency in the Applicant’s submissions and the corroborating evidence by way of the Police and Hospital Reports, the CICB accepts that the Alleged Offender pushed him and he was subsequently bitten and injured by the Alleged Offender’s dog. The CICB accepts the Police Report that indicates that the Alleged Offender tended to be hostile, her dog was known to bite others, and there was no indication that the Applicant did anything to provoke the attack.

13The CICB is satisfied that an assault occurred when the Alleged Offender pushed the Applicant. However, this did not cause any injuries and therefore was not a crime of violence as defined by the Act. Nevertheless, the CICB is satisfied that a crime of violence has occurred in the form of criminal negligence.

14Criminal negligence, as defined in the Criminal Code, is when someone, in doing anything or omitting to do anything that is their duty to do, shows wanton or reckless disregard for the lives or safety of other persons. As such, the CICB must be satisfied that the Alleged Offender’s actions constituted a marked departure from the standards of a reasonable person in the circumstances of the case and that she failed to direct her mind to a risk which a reasonable person would have appreciated. Indifference is sufficient.

15Given that the dog had a history of biting on at least three prior occasions, the Alleged Offender’s action of not having the dog on a leash or controlling her dog was a marked departure from the standards of a reasonable person. This would further be an indication that the Alleged Offender failed to direct her mind to the risk that a reasonable person would have appreciated, i.e. dog biting others. The CICB is satisfied, as a result, that a crime of violence has occurred.

16The CICB finds that the Applicant was injured as a result of a crime of violence. The Applicant’s evidence is clear that he was bitten on the right foot which required ten stitches to close. The wound later became infected and took over a month to heal. He was not fully recovered until two to three months had passed, requiring several visits to hospital and personal care from CCAC while the wound healed. The Applicant was left with an increased fear of dogs and a fear of the Alleged Offender. Taking these matters into account, the CICB determines that $4,000.00 is an appropriate award for the pain and suffering sustained by the Applicant.

17Counsel for the Applicant has expended the following sums in disbursements and requested reimbursement from the CICB:

City [Name] Records $86.08

[Name] Police General Occurrence Report $ 7.50

[Name] County Health $ 5.00

[Name] Community Access Centre $40.00

[Name] Regional Hospital $33.90

18These expenses, totaling $172.48 and supported by receipts, were spent in support of the Applicant’s claim. The CICB sustained no expense for procuring this information. The CICB finds that these expenses were reasonably incurred by counsel and therefore directs that the sum of $172.48 be paid to Legal Assistance of Windsor.

AWARD

19The CICB orders payment as follows:

Subsection 7(1)(d) Pain and Suffering $4,000.00

Section 22 Costs $ 172.48

TOTAL AWARD (AND COSTS) $4,172.48

PAYMENT

20THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $4,000.00

Legal Assistance of Windsor $ 172.48