(Re) 1608-04419, 2017 ONCICB 363

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Jo-Anne Hughes

Date: December 13, 2017

Indexed as: (Re) 1608-04419

ORDER

Introduction

1In this case, the Applicant claimed he was assaulted by a stranger (the Alleged Offender) who was insulting his spouse.

2The CICB is required to determine whether a crime of violence has occurred as per section 5(a) of the Act, what injury, if any, arose from it, and the relevant circumstances affecting whether or not compensation should be awarded and, if so, the amount.

3At the commencement of the hearing, the Panel confirmed that the Applicant was notified by way of a letter dated April 25, 2017, of the potential difficulties that he faced with respect to sections 17(1) and 17(2) of the Act, which 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 order 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.

4The Applicant confirmed that he understood the meaning of the above sections and, having been offered an adjournment, the Applicant indicated that he was prepared to proceed with the hearing as scheduled.

Incident

5In his [date], 2016 Application to the CICB, the Applicant wrote that on [date], 2016 he arrived home at 3:00 p.m. when he encountered the Alleged Offender who was attempting to speak with his spouse. Then, the Applicant was punched in the face and he fell and hit his head on the pavement. Someone called 911 and they waited for at least 20 minutes while the Applicant laid on the ground unconscious.

6In sworn testimony at the hearing, the Applicant said that the incident happened right in front of his apartment building in [City]. He had no memory of the time of day. His wife was on their balcony and the Alleged Offender was riding a bicycle. He did not recall any details of the incident and he did not recall speaking to police.

7Due to the Applicant’s memory issues, his spouse (Witness), was sworn in to provide testimony. She said she saw the Applicant speaking with the Alleged Offender who was on a bicycle. The Applicant tried to walk away from the Alleged Offender and towards a truck. The Witness did not know what words were exchanged between the Applicant and the Alleged Offender before the Alleged Offender punched the Applicant on the side of his face. The Applicant fell and his head hit the ground. She asked the occupant in the truck to call 911. The Applicant was unconscious for 25 minutes while they waited for the Ambulance to arrive. The Ambulance arrived first and then the police. The Witness did not recall speaking to police at the scene, but she recalled speaking to them at the Hospital. She gave them a description of the Alleged Offender and she did not know him.

Police Report

8In sworn testimony at the hearing, the Police Witness said that he was a 15 year veteran with the [Name] Police Service. The Police Witness noted that a passerby called 911 and he came across the scene as it unfolded. The passerby said the Applicant shoved the Alleged Offender and the Alleged Offender responded by punching the Applicant in the head and he fell to the ground.

9As a result of interviewing two independent witnesses, the Applicant, his wife and the pickup truck driver who dropped the Applicant off at the scene, the Police Witness produced a report that the CICB received that documented the incident that occurred at 3:05 p.m. on [date], 2016. In the report, police noted that the Applicant had confronted the Alleged Offender who was on a bicycle. This developed into an altercation where the Alleged Offender punched the Applicant, causing him to fall to the ground and hitting his head on the pavement of the roadway. The Applicant was taken to the Hospital before forensic investigators arrived at the scene. Police took photos of the scene and pool of blood on the road. At the Hospital, photos were not taken of the Applicant as he was being uncooperative.

10Police reported that the Applicant suffered from a brain hemorrhage as a result of this incident. Police also noted that this incident occurred as the Applicant was being dropped off by his co-worker, that the Applicant had been consuming alcohol and that he was likely in an intoxicated state.

11Police reported that the Alleged Offender was passing by the Applicant’s apartment building while he was arriving home and the Alleged Offender made “some type of derogatory comment” towards the Applicant’s spouse. The Applicant approached the Alleged Offender on the roadway and said “that’s my wife you’re talking about”. The Alleged Offender jumped off his bike and the Applicant gave him a two-handed push. Then, the Alleged Offender punched the Applicant once in the head which apparently knocked out. The Applicant fell to the ground, striking his head on the road. The Applicant was unresponsive for a period of time and once he regained consciousness, he became belligerent with EMS and police. He had to be restrained prior to being transported to the Hospital for treatment.

12The Police Witness said the Applicant had no recollection of what happened. On[date], police identified the Alleged Offender as an adult male with initials [initials]. Because of the level of the Applicant’s injuries, the Alleged Offender was placed under arrest for aggravated assault. The Alleged Offender told Police that the Applicant had a piece of lumber (2X4) which he swung at the Alleged Offender.

13Police interviewed the Applicant’s friend in the truck – he claimed not to see the altercation. However, this witness did confirm that the 2X4’s found on the ground after the incident were similar to the ones in his truck before the incident, and he did not know why that 2X4 was on the ground.

14The Police Witness noted there was another witness who was waiting at a bus stop. She saw the Applicant push the Alleged Offender and she saw him swing the 2X4 at the Alleged Offender and she saw the Alleged Offender punch the Applicant.

15The Police Witness also said that two witnesses believed that the Applicant was intoxicated and he was unhappy with the Alleged Offender’s comments towards his wife but they did not hear those comments.

16The Police Witness said that there was nothing in their investigation to suggest that the Applicant and Alleged Offender where known to each other. Based on their investigation and as a result of consultation with the Crown, the Police did not file charges against the Alleged Offender as there was no reasonable grounds for a conviction in this case. Police and the Crown Attorney believed that a “punch” was a reasonable response to being attacked with a piece of lumber. Also, Police considered the possibility of laying charges against the Applicant, but since the Alleged Offender was not injured, they did not pursue that course of action.

17Finally, Police noted that the Applicant had a blood alcohol level of .30 and that he also tested positive for cocaine – which would have contributed to his apparent level of intoxication.

Injuries

18In his submission to the Board, the Applicant wrote that an Ambulance took him to the hospital where CT scans revealed a brain bleed. He spent two days in ICU.

19On [date], 2016, the Applicant was taken by Ambulance to the Hospital were doctors found he had fractured ribs and fluid on his lungs. Doctors advised that it would be six months before he was healed and that he should take therapy for his brain issues.

Medical Reports

20The CICB received Medical Reports from the [Name] Memorial Hospital dated [dates], 2016. Ambulance reports confirmed that during their time the scene, the Applicant became uncooperative and Police had to be called to the scene to control the Applicant. The Ambulance report also showed they attended the scene less than 15 minutes after 911 was called. The Applicant’s combative behaviour continued while he was being treated at the Hospital and then next day his behaviour was fine and he was released.

21The CICB received a Medical Report, dated [date] 2017, from the Applicant’s Physician, Dr. [name], who noted that as a result of this incident, the Applicant suffered from a brain concussion. The Applicant said he could not afford to go to [city] for brain rehabilitation treatment and his latest neurology report cleared him of any concerns. The Applicant suffered from headaches, poor balance, dizziness and short-term memory loss as a result of this incident. Also, he had not been able to work since the incident.

Expenses

22The Applicant provided information to the CICB about a number of expenses which included:

• $36.00 - for hospital parking expenses

• $200.00 - for taxi and out-of-pocket expenses

• $53.00 - for medical reports from the [Name] Hospital

• $90.00 - for two ambulance trips to the Hospital

Analysis and Decision

23The fact that there has not been a conviction of a crime of violence is not fatal to the Applicant’s claim. Section 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 or death.

24In reaching its decision, the CICB has given careful consideration to all of the documentary evidence that was presented by the Applicant and the Police, the oral testimony of the Applicant, the Witness and the Police Witness about the circumstances surrounding the incident and the injuries sustained. In this case, the Applicant had no real memory of the incident.

25Notwithstanding the foregoing, and for the following reasons, the CICB is unable to find, on a balance of probabilities, that the Applicant was a victim of a crime of violence, and therefore, a victim within the meaning of section 5(a) of the Act. There are two reasons why the CICB has reached this conclusion. First, although the testimony of the Applicant and the Witness was consistent, it differs significantly from the testimony of the Police Witness. The Police Witness's testimony was that the physical altercation was initiated by the Applicant delivering a "two handed push" to the Alleged Offender and then swinging a 2X4 at him. Since the Applicant did not mention these details, the CICB prefers the testimony of the Police Witness, which was also supported by two independent witnesses, who confirmed that the Applicant appeared to be under the influence of alcohol. Second, considering the available evidence, the Police Witness testified that in consultation with the Crown Attorney, they determined that the Alleged Offender's punch was a 'reasonable' response in self-defence.

26As a result, the Applicant’s claim is denied, not only for his claim for pain and suffering but also for his travel (parking, taxi and ambulance) expenses.

27Notwithstanding the foregoing, it is the CICB’s practice to reimburse expenses to obtain medical records required to support applications to the CICB. The CICB finds no compelling reason to deviate from that practice under the circumstances. Accordingly, the CICB awards $53.00 in respect of the [Name] Hospital medical records expense.

Award

28The CICB orders payment as follows:

Section 22 Costs (Medical Records) $53.00

TOTAL COSTS $53.00

PAYMENT

29THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $53.00