Re 1509-00859, 2017 ONCICB 356

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicators: Lisa Barazzutti, John Spekkens

Date: December 05, 2017

Indexed as: (Re) 1509-00859

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, treatment expenses and travel to treatment expenses as a result of physical assaults that occurred between [date], 2014 and [date], 2015 where she sustained physical and psychological injuries. The incidents of [date], 2014 and [date], 2015 were reported to the Police. No charges were laid against the Alleged Offender in any of the incidents.

DECISION

2The CICB denies the claim 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 she was a victim of a crime of violence but also that her injuries resulted from the crime pursuant to subsection 5(a) of the Act.

4The Applicant must also provide reliable evidence to support her claims for

a. expenses actually and reasonably incurred as a result of her injury pursuant to subsection 7(1)(a) of the Act.

HEARING

5The Applicant appeared and provided oral testimony and submissions. The Applicant’s Support Person also attended the hearing to provide support.

6[Name] with the [Name] Police Services (Police Officer’) appeared as a witness. The Police Officer was the investigating officer.

7The 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 in the other room using telephones. The Panel and party representatives moved between the hearing rooms to conduct their questioning.

8A Spanish interpreter was present to interpret for the Applicant.

9At the beginning of the hearing, we confirmed the Applicant was aware of subsections 17(1) and 17(2) of the Act and that we would consider those parts of the Act when deciding the Application. These subsections read 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.

17(2) The Board may, in its discretion, refuse to make an order for compensation or ordered a reduced amount of compensation where it is satisfied that the applicant has refused reasonable co-operation with, or failed to report promptly the offence to, a law enforcement agency.

Documentary Evidence

10The CICB received the following documents with respect to the claim: Police Reports dated [date], 2015 and [date], 2015, Medical Report from her Family Physician dated [date], 2015, Therapy Report from [Name] dated [date], 2015, letter of support from the Canadian Centre for Victims of Torture dated [date], 2015, letter from the Centre for Spanish Speaking People dated [date], 2015.

11The Doctor’s Report indicates that the Applicant is suffering from anxiety and depression and has a history of both illnesses. The Therapy Report indicates that the Applicant continues to struggle with discrimination because she is transgendered and that she suffers from stress and anxiety as a result of the incidents. The other letters of support indicate that the Applicant continues to struggle with ongoing discrimination.

12Police Reports received by the CICB indicate that these incidents involved an ongoing neighbour dispute and were not criminal matters. They further indicate that the parties were cautioned and that no charges were laid against the Alleged Offender.

Oral Evidence

13The Applicant testified that on [date], 2014 in [City], Ontario at her residence in a rooming house she was threatened by the Alleged Offender. She testified that on that date she was doing dishes in the common kitchen shared by all of the residents when the Alleged Offender threatened her with a cooking spoon by waving it at her and told her that he didn’t want her living there.

14The Applicant also indicated to the CICB that the Alleged Offender would unleash a dog and would send the dog to attack her. The Applicant stated that she would have to run into her room to avoid being attacked by the dog. No specific dates were provided to the CICB regarding these incidents.

15The Applicant also testified that on [date], 2015 she was coming out of her class and was on her way home when she saw the Alleged Offender with his bike. The Applicant attempted to avoid the Alleged Offender but he came up to her and threw the bike at the Applicant. The Alleged Offender then proceeded to attack the Applicant. The Applicant testified that she contacted police but that she was told that she had to wait before police could attend the scene. The Applicant stated that the police finally arrived to investigate but that when they knocked on the Alleged Offender’s door in the rooming house that he was sleeping.

16The Applicant then testified that on [date], 2015, she was at home in her room at the rooming house getting ready to go out. She was in the process of dying her hair when some of the dye had dripped onto her pants. She then stated that she had removed her pants and was starting to prepare her food for something to eat in the kitchen. The Alleged Offender came into the kitchen and told the Applicant that she should leave. The Applicant left her food in the kitchen and went into her room to get ready. While in the process of getting ready the Applicant heard a noise at her door and testified that she feared it was the Alleged Offender.

17She then stated that the Alleged Offender started to enter into her room and she got up to close the door to prevent him from coming inside. The Applicant testified that she saw the Alleged Offender with a stick in his hand and that she thought he was going to kill her. She stated that she managed to take the stick from the Alleged Offender but he then grabbed her by her neck. The Applicant testified that she was trying to hit the Alleged Offender with the stick and that the Alleged Offender slipped. The Applicant then stated that she managed to jump over the Alleged Offender while he was on the floor and got out of the room and held the handle of the door to prevent the Alleged Offender from leaving the room. While she was doing this, she yelled at another rooming house resident to call the police but the resident went inside of his room. The Applicant stated that she asked a supervisor in the residence to use the phone and eventually was able to call the police where she was advised to wait for police.

18The Applicant testified that when the police officer arrived the police arrested her and took her back to the police station. When asked by the CICB about the outcome of the charges against her the Applicant was unclear as to what ended up happening with the charges.

19The Panel asked the Applicant to clarify whether or not she hit the Alleged Offender with the stick in relation to this last incident and the Applicant confirmed that she struck the Alleged Offender once because she wanted to get out of there. The Applicant could not identify what kind of stick was involved in this incident.

20The Police Witness testified that with respect to the [date], 2014 incident that the police had labelled the incident as a neighbour dispute. They went into the residence and checked the common wall between the Applicant and the Alleged Offender’s room as the Applicant had advised them that the Alleged Offender had put a hole in the wall to spy on her. The Police Witness confirmed that they did not find any hole in the common wall. As there was no criminal offence discovered, the police did not lay charges.

21The Police Witness was not involved in any of the other incidents.

22The Alleged Offender at the hearing denied all of the allegations made by the Applicant. With respect to the [date], 2014 incident the Alleged Offender testified that he was making soup in the common kitchen and that he never threatened the Applicant nor did he threaten the Applicant with a spoon. He stated that he only asked the Applicant whether or not she knew who had thrown out some plants and that the Applicant would not answer so the Alleged Offender left it at that.

23The Alleged Offender responded that with respect to the allegations involving the dog that he had been watching a dog that belonged to his friend. He stated that this dog was never leashed and that the dog may have gone over to see the Applicant but that the dog was not in any way attacking the Applicant.

24With respect to the [date], 2015 incident involving the bike, the Alleged Offender denied that he had thrown the bike at the Applicant; rather, the Applicant had said something to him and when he approached the Applicant to ask her what she said, the applicant took out her cell phone and was saying to someone on the phone that she needed help. The Alleged Offender then stated that he turned around on his bike and left the area.

25The Alleged Offender testified that with respect to the last incident on [date], 2015, that the Applicant was charged with assault and that those charges were resolved by way of a peace bond. The Alleged Offender stated that on this date he found the bathroom of the residence in a mess. He then went to the door of the Applicant to clean up her mess. He stated that the door of the Applicant’s room swung open and that the applicant had a table leg in her hand. The Alleged Offender then stated that the Applicant hit him on his head and that he fell to the ground. When the Alleged Offender regained consciousness he called the police and eventually the ambulance came and he was taken to the hospital.

26The Alleged Offender did not have any questions for the Applicant.

27The Applicant questioned the Alleged Offender. She stated that the Alleged Offender did communicate with her because he had asked about the plants being thrown out. She also commented that although he denied having a dog he admitted to dog sitting.

28With respect to physical injuries, the Applicant testified that she had sustained cuts and scratches from these incidents. She stated that the bike incident had affected her leg for several weeks. She indicated that she had not sought out medical attention for any physical injuries.

29The Applicant indicated that with respect to emotional injuries that she received counselling. She states that she gets flashbacks and is always looking over her shoulder. She reports feeling stressed and anxious. She further indicated that she had been totally traumatized by all of the incidents.

30The Applicant filed a medical report from her family doctor which states that the Applicant had been prescribed medication to deal with anxiety and that she has a history of anxiety and depression.

31There is also on file a Therapy Report noting that the Applicant suffers from emotional distress, sleep disruption, headaches and nightmares. The Report went on to indicate that the Applicant is resilient and that the incidents did not have a significant impact on her daily life.

32There were letters of support that were also filed by the Applicant from the Canadian Centre for Victims of Torture and from the Centre for Spanish Speaking People which confirmed that the applicant was engaging in services and that the services provided were free.

33In her Application, the Applicant claims for travel to treatment expenses relating to the trips she had to make from her home to the Centre for Spanish Speaking People. As the distance travelled was less than 40 kilometres these expenses cannot be considered because they do not meet the threshold required for travel to treatment.

ANALYSIS AND DECISION

34For the following reasons the CICB dismisses the Application.

35The 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 had the onus of proving that she was a victim of a crime of violence and that she sustained injuries as a result pursuant to subsection 5(a) of the Act.

36The standard of proof in cases before the CICB is “on a balance of probabilities.” Clear, convincing and cogent evidence is required to satisfy the standard of proof. In essence, the Panel must determine whether the Applicant’s allegations regarding the incident are substantially the most probable version of events to have occurred. The Panel must not consider the Applicant’s evidence in isolation. We are required to assess her evidence against the evidence of the Alleged Offender and the documentary evidence submitted.

37The CICB is not convinced that there is sufficient evidence to establish, on a balance of probabilities, that crimes of violence occurred.

38With respect to the allegation surrounding the alleged assaults, the Panel prefers the evidence of the Alleged Offender over that of the applicant for the following reasons. The Panel did not have issues with the Alleged Offender’s credibility and reliability. During the hearing, the Alleged Offender gave his testimony in a forthright manner. When the Alleged Offender was questioned, he responded with confidence and without hesitation. We did not find him to be evasive or dishonest. He provided his evidence in a straightforward manner and appeared genuine when indicating that he did not commit the assaults. The Alleged Offender’s evidence was consistent with that of the Police. The Alleged Offender’s interactions with the Applicant appeared necessary in the circumstances.

39In addition, the Applicant’s testimony during the course of the hearing was not consistent.

40Specifically, the Applicant at times had left out details in her testimony but when questioned further would then add additional details. When the Applicant testified about the [date], 2015 incident, she did not mention in her testimony that she had struck the Alleged Offender. It was only when questioned by the Panel about why she was charged did the Applicant indicate that she struck the Alleged Offender. Further, the Applicant’s evidence was not consistent with the results of the police investigation. As stated above, the police concluded that due to conflicting information and the nature of the disputes that they had insufficient grounds to lay criminal charges against the Alleged Offender. For example, the Applicant’s claim that the Alleged Offender had made a hole in the common wall between their rooms was investigated by the Police and found that there was no hole in the wall as claimed by the Applicant.

41When assessing the written evidence provided by the Applicant’s treatment provider, the CICB puts less weight on the self-disclosures made by the Applicant to her Therapist.

42Having considered all of the evidence filed by the Applicant and the testimony taken during the hearing, the CICB, in this case, is not persuaded, on a balance of probabilities, that the Applicant was a victim of assaults committed by the Alleged Offender. For these reasons, the claim for pain and suffering is denied.