(Re) 1704-01072, 2017 ONCICB 325

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Keith Forde Date: November 06, 2017 Indexed as: (Re) 1704-01072

ORDER

Introduction

1The Applicant asks the Criminal Injuries Compensation Board (CICB) to compensate him for injuries resulting from a crime of violence which occurred on [date], 2013, in accordance with the Compensation for Victims of Crime Act, RSO 1990, c. C.24, as amended (the “Act”). He is seeking compensation for pain and suffering incurred from one act of assault causing bodily harm, committed by the Offender, a stranger. The Applicant is also seeking reimbursement medical and travel to treatment expenses.

2The Offender was convicted of assault causing bodily harm to the Applicant on March 18, 2016 and, in addition to 120 days of pre-sentence custody, he was sentenced to six months and two years’ probation. There was also a firearms prohibition for life and a DNA Order primary.

Decision

3The CICB approves compensation to the Applicant in the sum of $5,000.00 for pain and suffering, $20.00 for a shoulder brace and section 14 for $1,500.00 for the reasons set out below.

Issues

4As the Offender was convicted of assaulting the Applicant, there is no issue that he was the victim of crimes of violence.

5The CICB must determine the following:

• Whether the Applicant suffered injuries as a result of the crime of violence;

• If so, the appropriate level of compensation, if any, for the Applicant’s pain and suffering;

• The CICB must assess all relevant circumstances;

• The CICB must determine whether the Applicant’s claim for medical and travel to treatment expenses is supported by evidence.

Evidence

Applicant’s Evidence

6The following is a summary of the facts and circumstances taken from the Applicant’s Application information and from the [Name] Police correspondences to the CICB.

7On June 22, 2013, the Offender and a female checked into the [Name] Motor Inn in [City]. At this time, the Offender and his companion were told that the place was a non-smoking building. A short time after checking in, the manager (the Applicant) smelled cigarette smoke coming from the Offender’s room and on three separate occasions he cautioned the Offender about smoking in the room and on all occasions, the Offender denied that he was smoking.

8The Applicant contacted the Offender and asked him to leave as he continued smoking in his room. The Offender wanted a refund, however, the Applicant refused to refund the Offender who was now in the lobby. The Applicant instructed the Offender to leave as he had violated the “no smoking policy” of the building. The Offender then went around the counter over the desk and attacked the Applicant by punching him in the head, knocking him to the floor.

9The Applicant’s son heard the commotion and saw the Offender and his companion leaving the Inn and called the police. Police attended the scene and called for an ambulance. The Applicant was then removed to Hospital where he was examined, treated and released.

10The Applicant also provided the CICB various documents in support of his claim.

11The CICB was in receipt of a medical report from [Name] District Memorial Hospital which noted that the Applicant presented with a laceration to his forehead, fracture to his right forearm (right ulna fracture). The Applicant suffered a comminuted fracture in the proximal ulnar diaphysis. On [date], 2013, surgery was performed on the Applicant’s right ulnar fracture by Dr. [Name] at [Name] Hospital.

Injuries

Physical

• Ring marks indented on forehead;
• Broken arm, in two places;
• Cannot lift heavy objections; and
• Constant pain.

12Psychological/Emotional: None was reported.

Analysis

13Section 11 of the Act states that proof of conviction shall be taken as conclusive evidence that the offence has been committed. The CICB finds that the Applicant was subjected to a crime of violence as defined by section 5(a) of the Act, as a result of an assault causing bodily harm, committed on [date], 2013, in [City].

14Having considered the evidence presented in the Applicant’s Application and the police information, the CICB is persuaded that the Applicant suffered physical injuries as a result of a crime of violence. The CICB finds the Applicant to be a victim within the meaning of section 5(a) of the Act.

15The CICB accepts that the Applicant suffered physical injuries and the related symptoms that are described by the Applicant in the documentary information submitted to the CICB. The CICB also accept that the Offender’s crime was the contributing factor to the Applicant’s continuous pain.

16In assessing compensation for pain and suffering, the CICB was mindful of the circumstances of this incident and the psychological injuries suffered by the Applicant and considered the following aggravating facts:

• The CICB considered the nature of the assault;

• The extent of the physical injuries sustained;

• That surgical intervention was required;

• The associated period of recovery;

• That the incident was unprovoked;

• That the Applicant was assaulted at his place of employment.

17Having considered all of these factors, the CICB assesses compensation for pain and suffering in the amount of $5,000.00.

18The CICB considered the Applicant’s claim in respect to a shoulder brace costs, for which a receipt was provided. The CICB finds such costs to be both reasonable and within the context of the Act and will therefore award $20.00 for such costs.

19It is the CICB’s practice to only consider travel to treatment costs when an Applicant is required to travel more than 40 kilometres each way (80 kilometres round trip) outside of her city of residence for treatment. The CICB finds no compelling reason to deviate from that practice under the circumstances. Since the Applicant was not required to travel more than 40 kilometres each way for his treatment/counselling sessions, these expenses are denied.

20If the Applicant receives monies on account of this incident/injury in the form of a Non-Economic Loss award from WSIB, the CICB is obligated to take these monies into account in accordance with section 17(3) of the Act, which reads as follows:

In assessing compensation, the Board shall take into consideration any benefit, compensation or indemnity paid or payable to the Applicant from any source other than general welfare assistance or family benefits.

21The Applicant is therefore obligated to notify the CICB if he receives such award.

Award

22The CICB orders payment as follows:

Section 7(1) (a) Shoulder brace $ 20.00

Section 7(1) (a) Expenses (Section 14 Award) $1,500.00

Section 7(1) (d) Pain and Suffering $5,000.00

TOTAL AWARD (AND COSTS) $6,520.00

Less: Section 14 Award – already paid/authorized $1,500.00

TOTAL CURRENT AWARD $5,020.00

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.

PAYMENT

24THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $5,020.00