(Re) 1410-97164, 2017 ONCICB 332

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Pamela Arnott

Date: November 23, 2017

Indexed as: (Re) 1410-97164

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, loss of income, and other pecuniary losses as a result of an armed robbery that occurred on [date], 2014 where he sustained physical and psychological injuries. The incident was reported to the Police and resulted in a conviction.

DECISION

2The CICB approves the claim and makes an award of $25, 000.00 for the reasons set out below and as apportioned 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. income or pecuniary loss incurred as a result of his total or partial disability affecting his capacity for work pursuant to subsection 7(1)(b) of the Act; and

c. 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.

5The Applicant was alerted by letter to the provisions of section 17(3) and section 26(5.1) of the Act, which read as follows:

17(3) In assessing compensation, the CICB shall take into consideration any benefit, compensation or indemnity paid or payable to the applicant from any source other than social assistance.

26(5.1) The CICB is entitled to be reimbursed, out of any amount recovered by the applicant from the offender or any other party, for the amount of compensation awarded to the applicant.

6These sections were described to the Applicant by letter dated October 10, 2014.

HEARING

7The hearing was conducted in writing on the basis of the materials contained in the Applicant’s file.

Documentary Evidence

8The CICB received the following documents with respect to the claim: Police Report dated October 27, 2014: emails from Police dated January 28, 2015; Media Reports dated [date], 2014 and [date], 2014; [Name] Health Sciences Centre reports including Discharge Summary dated [date], 2014, Operative Reports [dated] 2014, Trauma assessments dated [date], 2014; other Hospital Records, Medical Reports from Dr. [Name] from [date] to [date] 2014; [Name] Physiotherapy Report dated [date] 2014; Medical Report from Dr. [Name] dated [date] 2014; WSIB application dated January 2015; letter from the Applicant’s spouse dated January 2015; Information on the Offenders and Alleged Offender dated December 16, 2016; Employer’s Report from 2014; CRA returns for 2011, 2012, and 2013; receipts for ambulance and medical reports; and the Application.

9On [date], 2014, the Applicant was working as an armed guard for [Employer] doing deliveries of cash to bank machines in an armoured vehicle. At a scheduled stop on [Road] in [City], the Applicant was ambushed as he exited the armoured truck. He was shot at close range multiple times.

10The two Offenders and the Alleged Offender were arrested shortly thereafter and charged with attempted murder, discharge firearm with intent to commit an indictable offence, conspiracy to commit an indictable offence, robbery while armed, disguise with intent, use of firearm in the commission of an offence, possession of a firearm, unauthorized possession of a firearm, careless use of a firearm and pointing a firearm. Offender 1 was convicted of attempted murder, disguise with intent, while Offender 2 was convicted of robbery while armed, and robbery. At the time of the hearing before the CICB, the Court matter regarding the Alleged Offender was pending.

11The Medical Reports indicate that the Applicant suffered massive injuries which included rib fractures, multiple contusions to the lungs and abdomen, lacerations to the liver, diaphragm, vetebrae and spleen, a broken left leg and knee, and a broken right forearm. The Applicant underwent multiple surgeries and transfusions for these injuries. He was hospitalized from [date] to [date], 2014.

12Among his injuries, the Applicant indicates, and the Medical Records confirm, that:

a. One bullet fractured several vertebrae causing them to collapse. This injury continues to cause him chronic pain and reduced his ability to lift a weight exceeding 10 pounds. Additional surgery is being contemplated for these back and chest injuries;

b. His left lung lobe was removed and part of his right lung lobe was removed. This injury has left the Applicant with reduced respiratory function;

c. His spleen was removed entirely which has reduced the Applicant’s immune system and will require the Applicant to have annual vaccinations;

d. He has gastric problems due to the injuries to his abdomen;

e. He has multiple scars on his left hand, left hand, right arm, right wrist, left knee, rib cage, hip, chest, and abdomen. These scars have thickened and continue to cause the victim pain. In addition, multiple bullet fragments remain in his body causing residual pain; and

f. He had life-threatening blood loss and required multiple transfusions.

13The letter from Dr. [Name] dated October 7, 2014 indicates that, while the Applicant has some gun fragments in his forearm, he has good range of motion in his right wrist. Similarly, Dr. [Name] indicates that the Applicant has a good range of motion in his left knee.

14The Applicant indicated that he suffered many psychological injuries. He felt sadness and a great sense of loss that his injuries have completely changed his life. The Applicant indicates that the injuries have reduced his ability to do daily activities. In particular, he cannot pick up his children, do physical activities with them or participate in family activities. The Applicant indicates that this incident has affected his ability to be a father and a husband. In addition, the economic stress on the family is adding to his suffering. He has daily reminders that his life is not the same and will probably never return to the way it was. He believes that his future is uncertain. No therapy reports were provided to the CICB.

15The Medical Report from Dr. [Name], dated December 2014, and the [Name] Physiotherapy Report, dated November 2014, indicate that the Applicant is permanently injured and unable to work. No additional recent documents were provided to the CICB.

16The Report from [Name] Physiotherapy also indicates that therapy from September to December 2014 was paid by the WSIB.

17The Employer’s report from [Employer] indicates that the Applicant earned $1,174 weekly. The Applicant provided his CRA tax returns indicating that he earned between $56,000 and $61,000 annually. The Applicant indicated that he received $756.00 weekly from the WSIB beginning July 1, 2014. It is not clear if this benefit is continuing at the time of this hearing, however the WSIB application appears to still be ongoing.

18The Applicant’s spouse, [Name], indicated that she has left work temporarily in order to provide attendant care to her husband. She also provided a letter from her Employer indicating that she lost income in the amount of $18,295.20 between June and November 2014. [Name] clarified in a letter to the CICB that she received employment insurance benefits of 20 weeks from July 6 to November 30, 2014. No recent information about [Name]'s absence from work or about the amounts paid to [Name] by Employment Insurance was provided to the CICB.

ANALYSIS AND DECISION

19For the following reasons the CICB grants the Application.

20Section 11 of the Act provides that proof of conviction shall be taken as conclusive evidence that the offence has been committed. Given that two of the three perpetrators in this case were convicted, the CICB is satisfied that a crime of violence occurred. Accordingly, the Applicant must now establish that he suffered an injury as a result of the crime as required by section 5(a) of the Act.

21Based on the Police evidence and the overwhelming medical evidence, the CICB finds that the Applicant suffered physical and psychological injuries as a result of the incident. These injuries include permanent disability due to reduced lung function and vertebral fractures, scars to a large portion of his torso and arms, and reduced lung and gastric function. The CICB also accepts that the Applicant suffered the psychological injuries as set out in his Application and above.

22In making its award, the CICB has considered the violent nature of this assault on the Applicant, the impact on his work, career and family life, and that some of the injuries are permanent. Having considered the above factors, the CICB awards the Applicant the sum of $20,000.00 for pain and suffering.

23With respect to the loss of income portion of the claim, the Applicant indicates that he has received $756 weekly (or $3024 monthly) from the WSIB. The Applicant is therefore receiving compensation for income loss from another source.

24The CICB is obligated under section 17(3) of the Act to consider any monies received by the Applicant – both paid and payable into the future – in respect of income loss. The CICB is considered to be a payor of last resort and hence monies received from any other sources must be considered in accordance with the Act. Section 17 (3) of the Act states:

17(3) In assessing compensation, the CICB shall take into consideration any benefit, compensation or indemnity paid or payable to the applicant from any source other than social assistance.

25In addition, it is the CICB’s practice to reimburse income loss to a maximum of $1,000.00 per month or $50.00 per day. Therefore, the Applicant is already receiving an amount for income loss from the WSIB which exceeds what he could have received from the CICB. That portion of the claim is therefore denied.

26With respect to the other pecuniary losses claimed under subsection 7(1)(f) of the Act, the CICB has considered the fact that the Applicant’s spouse had to stay home as a result of his injury. She too suffered a loss of income while caring for her husband from [date], 2014 to [date], 2014. While the full extent of that income loss is not clear to the CICB given that she received employment insurance in 2014 and the CICB has no updated information, the CICB nonetheless finds it reasonable to award the Applicant compensation in the amount of $5,000 as recognition that the overall family household income was negatively affected as a result of his injury.

27Finally, pursuant to section 19(1)(a) of the Act, $25, 000.00 is the maximum allowable award for lump sum payments:

19(1) The amount awarded by the CICB to be paid in respect of the injury or death of one victim shall not exceed, (a) in the case of lump sum payments, $25,000.

28Since the CICB has issued the maximum allowable lump sum award, it cannot consider any further claims for compensation from the Applicant in respect of this incident.

AWARD

29The CICB orders payment as follows:

Subsection 7(1)(d) Pain and Suffering $20 000.00

Subsection 7(1)(f) Other Pecuniary Loss $ 5 000.00

TOTAL CURRENT AWARD $25 000.00

PAYMENT

30THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $25 000.00