Re 1509-00826, 2017 ONCICB 355

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicators: Lisa Barazzutti, John Spekkens

Date: December 05, 2017

Indexed as: (Re) 1509-00826

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 pain and suffering as a result of a physical assault that occurred on [date], 2015 where he claims to have sustained physical/psychological injuries. The incident was reported to the police and resulted in charges being laid which ultimately were withdrawn in favour of a peace bond.

DECISION

2The CICB approves the claim and awards the Applicant the sum of $5,202.31 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.

4If the Applicant has met the above threshold, in deciding whether or not to exercise our discretion to award compensation and the amount thereof, we must consider all the relevant circumstances, including whether the Applicant’s behaviour may have directly or indirectly contributed to the injuries pursuant to subsection 17(1) of the Act.

5The Applicant must provide reliable evidence to support his claims for expenses actually and reasonably incurred as a result of his injury pursuant to subsection 7(1)(a) of the Act.

HEARING

6The Applicant appeared and provided oral testimony and submissions.

7[Name], a detective with the [Name] Police Services (Police Officer) appeared as a witness. The Police Officer was involved in the incident which is the subject matter of this Application.

8The Alleged Offender was present and participated in the hearing. In these circumstances and as is the CICB’s normal practice, a shuttle hearing was held. The applicant and alleged offender were in separate hearing rooms but able to hear and participate in the proceeding by telephone. The Panel moved between the hearing rooms to conduct their questioning.

9A Spanish interpreter was sworn by the CICB and was present to interpret for the Alleged Offender.

10At the beginning of the hearing, we confirmed the Applicant was aware of section 17(1) of the Act and that we would consider that part of the Act when deciding the application. The subsection reads as follows:

17(1) In determining whether to make an order for compensation and the amount thereof, the Board shall have regard to all relevant circumstances, including any behaviour of the victim that may have directly or indirectly contributed to his or her injury or death.

Documentary Evidence

11The CICB received the following documents with respect to the claim: a Police Report dated [date], 2015, Hospital Records from [Name] Hospital, a Medical Report from his Family Physician, and copies of prescription receipts and an ambulance invoice.

12Specifically, the Hospital Records indicate that the Applicant suffered right ulna fracture which required medical intervention and treatment. The Medical Report from the Applicant’s Doctor indicated that the Applicant had suffered a right ulna fracture with a temporary impairment.

Oral Evidence

13The Applicant testified that on [date], 2015 he was at home at the rooming house where he resided. He testified that he had banged on the door of the Alleged Offender because the Alleged Offender had left a mess in the common washroom. He testified that the Alleged Offender opened up her door and hit him on the head with a table leg. In an effort to protect himself the Applicant raised his left elbow to protect himself and was struck on the right arm. The Applicant stated that he fell to the ground but that the Alleged offender kept hitting him. He eventually was able to call the police from his cell phone. He then walked out of the residence and met the ambulance. He was then treated by the ambulance attendants and eventually taken to the Hospital.

14We asked the Applicant to clarify whether the door of the Alleged Offender’s room remained open or closed. The Applicant was not able to provide an answer to that question. We further questioned the Applicant as to why he would bang on the door of the Alleged Offender. The Applicant advised the Panel that everyone in the rooming house was responsible to clean up after themselves and that perhaps he was too aggressive when he banged on the Alleged Offender’s door.

15We questioned the Applicant about whether he was inside or outside of the Alleged Offender’s room during the incident. Again the Applicant was unclear as to whether he was inside or outside of the room. When questioned why he did not step away after being struck he advised the Panel that he was attempting to grab the weapon away from the Alleged Offender.

16With respect to injuries, the Applicant testified that he sustain a broken right arm and required eleven stitches to his head. His broken arm required a plate in it and as a result, he sustained significant pain in his right arm. He states that his right arm does not feel the same and that he does his own physiotherapy with exercises given to him by the Hospital. He reports that his range of motion is not the same as it was prior to the incident.

17The Applicant testified that he sometimes thinks about the incident as he still lives in the same residence. The residence reminds him of what had happened on that date.

18The Police Witness testified regarding the facts discovered through her investigation. The investigation revealed that both the Applicant and the Alleged Offender were neighbours resided in their own units inside a rooming house but shared a common bathroom and kitchen. The investigation further revealed that upon discovering water all over the bathroom floor the Applicant knocked on the Alleged Offender’s door who then opened up the door to her room and swung a broken leg of a chair at the Applicant. The Applicant was struck by the Alleged Offender in the head, arm and leg several times. During this altercation, the Applicant was able to disarm the Alleged Offender. The Applicant cooperated with the Police in their investigation and provided photos of his injuries afterwards. While assault charges were laid against the Alleged Offender, after discussions with the Crown, the matter was resolved by way of a peace bond despite the Applicant not being in favour of that resolution.

19The Alleged Offender testified that she wished to rely upon the testimony that she gave in her Application to the CICB involving the Applicant as the Alleged Offender in file 1509-00859. The Alleged Offender further indicated that she did not have any questions for the Applicant. The Panel asked the Alleged Offender whether or not she had contacted the police from her cell phone. The Alleged Offender responded that she could not recall. When asked further about whether she had anything else to say she testified that this was very stressful and that if anything happened to her after this hearing that the Applicant would have something to do with it.

ANALYSIS AND DECISION

20For the following reasons the CICB grants the Application.

21The Applicant’s evidence was internally consistent, his account of the incident in his Application, oral evidence and as relayed to the Police is consistent and did not change over time or after questioning.

22The Applicant gave his testimony in a credible forthright manner; his testimony was consistent with what he reported in his primary information to the CICB. The Applicant spoke in calm, confident and assured voice, he was convincing in the manner in which he related the series of events leading to the assault. When the Applicant was questioned, he did not feel for the answers, but in calm, assured voice, responded with confidence and without hesitation.

23The Alleged Offender gave her testimony in a vague, evasive manner; she was not convincing and appeared to be measured with all her comments and answers. She was brief with her testimony and partially admitting some of the allegations. She often contradicted herself. In her testimony to the CICB, she initially omitted that she had a weapon and had struck the Applicant. She also had difficulty recollecting details surrounding the incident. She also failed to mention to the CICB that she herself had been charged as a result of the incident and could not provide details as to whether or not those charges had been resolved.

24For the reasons detailed above, the CICB finds that on a balance of probabilities, that the Applicant was a victim of a crime of violence, specifically the crime of assault, which caused physical, emotional, and psychological injuries to the Applicant. The CICB therefore concludes that the Applicant is a victim under section 5(a) of the Act and is entitled to compensation.

25As is the case with all applications that come before it, the CICB is required to consider the provisions of section 17(1) of the Act, as cited at the outset of this order. Therefore, the issues for the Panel are to determine whether the circumstances, including the Applicant’s behaviour, contributed, either directly or indirectly to the incident or injuries.

26With respect to the Applicant’s contribution to the incident or his injuries, the CICB considered all of the relevant circumstances, the evidence provided by the Applicant, the oral testimony of the Police Witness, the evidence of the Alleged Offender and the documentary evidence of the Police. The Applicant admitted in his oral testimony that he banged on the door of the Alleged Offender and did yell at the Alleged Offender to clean up her mess. In hindsight, the Applicant acknowledged to the Panel that he probably could have dealt with the situation in a different manner.

27Although the CICB did find the Applicant’s behaviour to be a relevant circumstance, having weighed the proportionality of the Applicant’s conduct against the severity of the injuries sustained, the CICB finds it is appropriate to award compensation to the Applicant in this case. Having considered the testimony of the Applicant and the Medical Records on file the CICB shall award the sum of $5,000.00 for pain and suffering with respect to this incident.

28The CICB considered the Applicant’s claim in respect to medication 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 $ 157.31 for such costs.

29The CICB has also considered the Applicant’s claim in respect to the ambulance expense for which a receipt was provided. The CICB finds such a cost to be both reasonable and within the context of the Act and will therefore award $45.00 for such costs.

AWARD

30The CICB orders payment as follows:

Subsection 7(1)(a) Expenses $ 202.31

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

TOTAL AWARD (AND COSTS) $ 5,202.31

PAYMENT

31THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $5,202.31