CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: M. Saleem Akhtar
Indexed as: (Re) 1605-03579
ORDER
Introduction
1This is an Application seeking compensation for physical and emotional injuries arising from the commission of an alleged crime of violence in accordance with the Compensation for Victims of Crime Act, RSO 1990, c. C.24, as amended (the “Act”). An assault is alleged to have been committed against the Applicant by the Alleged Offender on [date], 2016 in the Province of Ontario.
Decision
2The CICB approves the Applicant’s claim with respect to physical assault committed against him on [date], 2016 by the Alleged Offender and awards him the sum of $5,000.00 as compensation for pain and suffering.
Evidence
3In his Application before the CICB, the Applicant wrote under the heading “Describe the Incident” as follows:
I was at the bar … with a few of my friends. I was standing on the edge of the dance floor with one of my friends, when all of a sudden someone sucker-punched me in the face. I fell to the ground and the person continued to punch my face. My friend tried to pull off the man and the man who assaulted me had a friend with him standing beside my friend and held my friend back. The bouncers pulled the man off me who attacked me and threw him out of the bar. I have no idea who hit me or even why? I did not know the attacker and I did not start anything with anyone all night. The attacker came out from nowhere.
4In the Application form, the Applicant wrote that he sustained the following injuries:
My face was very swollen and bruised. My front tooth is loose and the whole inside of my mouth was cut from my teeth, and my left foot is sprained and I am still limping. I had 10 x-rays on my teeth and a full head x-ray from my dentist. I went to the Walk-in-Clinic and I was prescribed Apo-Naproxen 500 mg from the doctor and was sent to get a foot x-ray. I also have several body bruises from I fell to the ground. I missed 2 and half days of work and I didn’t sleep well for almost two weeks. A month after the attack when my mouth and face healed, I had to get my loose tooth removed and replaced with a denture.
5In support of his claim with regards to physical injuries, the applicant has submitted Treatment Reports from a Medical Centre, Walk-in-Clinic and Dental Reports. These reports corroborate Applicant’s claim in respect of his physical injuries. The Dental Report confirms that tooth # 12 was broken as a result of the assault and that the Dentist did the required emergency work to repair the damage.
6In terms of the emotional impact, the applicant claims that he had sleep disturbance for two weeks after the assault. The Applicant has not provided any professional advice/report from a psychologist/therapist/counsellor/social worker, which might have discussed the impact that the physical assault may have had on him emotionally.
Police Report
7Police Report, on file, by and large, corroborates Applicant’s version of the incident. It adds that no information gathered as a result of the investigation suggested that the assault was provoked. The Applicant was cooperative. It further adds that the Applicant “sustained a cracked tooth on the right side of his mouth and a swollen lip.”
Issues
8Pursuant to subsection 5 (a) of the Act, the CICB must determine on a balance of probabilities:
Whether crimes of violence occurred against the Applicant; and, if so;
The nature and extent of the injuries sustained;
Whether compensation should be awarded and, if so, the amount;
Consider out-of-pocket expenses and future dental work costs, as requested by the Applicant.
Analysis and Decision
9With respect to an incident of physical assault alleged by the Applicant to have occurred on [date], 2016, the fact that there has not been a conviction is not fatal to the Applicant’s claim.
10Section 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.
Crime of Violence
11The CICB must determine on a balance of probabilities if the Applicant is a victim of violent crime under subsection 5(a) of the Act. This subsection provides that the victim’s injury must have resulted from a “crime of violence” constituting an offence against the Criminal Code of Canada, RSC 1985, c.C-46.
12In this claim, the CICB must be able to conclude that the Applicant was probably injured as a result of an intentional assault as opposed to being injured in some other way. The standard of proof in cases before the CICB is “on a balance of probabilities.” Clear, cogent and convincing evidence is required to satisfy the standard of proof. In essence, the CICB must determine whether the Applicant’s allegations regarding the incidents are substantially the most probable version of events to have occurred. The CICB must not consider the Applicant’s evidence in isolation; rather, the CICB is required to assess the totality of the evidence presented.
13Under the legislation, it is the CICB that is required to decide whether a relevant offence, “a crime of violence”, has taken place. The matter is not determined by the initial categorization of the offence by police investigators. It is not decided by the charges laid against the offender. It is not resolved by the charges which the prosecutor chooses to proceed to trial of other disposition. It is not pre-empted by the decision of the criminal court. It is for the CICB to decide the matter, on the evidence adduced before it, and upon proper construction of its statutory mandate.
14The issue as to what constitutes a “crime of violence” was also considered by the Alberta Court of Appeal in its decision in R. v. Neve, 1999 ABCA 206, [1999] A.J. No. 753 (C.A.). In Neve, the Pitters case was cited at paragraph 74. At paragraph 85 of the Neve decision, the Alberta Court of Appeal found that simply because an offence did result in some injury, it would not automatically make the offence a violent offence. The Neve decision and the Pitters case, have been cited in other subsequent cases including the Ontario case of R. v. Carlson, [1999] O.J. No. 5305 (SCJ) and the Manitoba case of R. v. Cook, 2010 MBQB 237, [2010] M.J. No. 327 (Q.B.). In Carlson at paragraph 19, Justice Platana similarly commented that:
While actual injury is not required before an offence can be classified as a ‘violence offence’, it does not follow that simply because an offence did involve some injury this automatically makes the offence a violence offence.
15Based upon a careful review of the documentation, on file, the CICB finds the Applicant not only a victim of a crime of violence (assault) within the meaning of and pursuant to subsection 5(a) of the Act but also accepts that he sustained both physical and emotional injuries, as discussed above.
Injuries
16In support of his claim with regards to physical injuries, the Applicant has submitted Treatment Reports from Medical Centre, Walk-in-Clinic and Dental. These Reports corroborate Applicant’s claim in respect of his physical injuries. The Dental Report confirms that tooth # 12 was broken as a result of the assault and that the Dentist did the required emergency work to repair the damage.
17In terms of the emotional impact, the Applicant claims that he had sleep disturbance for two weeks after the assault. The Applicant has not provided any professional advice/report from a psychologist/therapist/counsellor/social worker, which might have discussed the impact that the physical assault may have had on him emotionally.
18In the absence of any relevant supporting documentation, it is difficult, if not impossible, to gauge the extent of emotional/psychological impact that the assault might have had on the day-to-day life of the Applicant. Despite that, the CICB understands that such traumatic incidents do leave emotional scars on victims’ minds, at least to some degree.
Compensation
19It is important to note that the CICB has wide discretion to determine whether or not to award compensation to an applicant from public funds. Leung v Ont. (Criminal Injuries Compensation Board) 1995 10629 (ON CTGD), 1995 OJ 1464 (Div. Ct) at para 5. Awards are not paid by the wrongdoer as would be the case if a victim pursued compensation through a civil action. Also, the Act is not intended to make an applicant for compensation whole or to provide full indemnity to an applicant. The CICB also considers previous awards made by it in similar fact cases/situations in order to determine a reasonable amount of compensation.
20In every case before it, the CICB is required to determine what the relevant circumstances are and to decide whether to grant or deny compensation having regard to those circumstances on a balance of probabilities. There is no automatic right to compensation under the Act. There is only a right to apply for compensation, which may be granted or refused at the discretion of the CICB, in accordance with natural justice. Sheehan and Criminal Injuries Compensation Board (1975), 1974 439 (ON CA), 5 O.R. (2d) 781. As such, not all injuries warrant compensation. As was noted by the Divisional Court in Pitters v. Ontario (Criminal Injuries Compensation Board), [1996] O.J. No. 4339 (Div. Ct):
The nature of the dispositive authority conferred upon the Board by the Act evidences a legislative intention to accord to the Board a substantial measure of discretion. Under section 5 of the Act, the Board "... may make an order that it, in its discretion exercised in accordance with this Act, considers proper." The breadth of the statutory discretion is underscored by the use of the permissive "may" and "in its discretion". The only substantive qualifier on the exercise of discretion by the Board is that it must be "in accordance with this Act". No enumerative list of factors informs the exercise by the Board of its discretion.
21Section 5 of the Act states:
The Board, on application therefor, may make an order that it, in its discretion exercised in accordance with this Act, considers proper for the payment of compensation to,
(d) The victim
22In assessing compensation for pain and suffering in this case, the CICB has considered:
The nature of the assault and the extent of the injuries sustained;
The emotional/psychological impact of the sexual abuse; and
The ongoing impact on the Applicant’s overall health, relationships and productivity.
23After reviewing the evidence in its totality and having regard to all of the above mentioned circumstances as well as considering previous awards made by the CICB in similar fact cases/situations in order to determine a reasonable amount of compensation, the CICB awards the Applicant $5,000.00 as compensation for pain and suffering.
24The CICB considered the Applicant’s claim in respect to prescription drugs costs in the amount of $30.02, for which relevant documentation has been provided. The CICB finds such costs to be both reasonable and within the context of the Act and, therefore, awards $30.02 for such costs.
25The CICB considered the Applicant’s claim in respect to past dental treatment in the amount of $1,025.02. As per record, $671.69 was covered by the Applicant’s insurance. Hence, the total out-of- pocket costs under this head is $353.33 ($1,025.02 - $671.69 = $353.33). The CICB finds such costs to be both reasonable and within the context of the Act and, therefore, awards $353.33 for such costs.
26Based on the Applicant’s stated intention, which is also supported by his Dentist, he has to undergo more assault-related dental work in the near future. The estimate given by the Dentist is $4,691.00. The Applicant has also indicated that his insurance can contribute up to $2,000.00. In view of this information, the CICB authorizes up to $1,500.00 as a contribution towards future dental costs (exclusive of any applicable taxes) to be paid directly to a qualified treatment provider upon receipt of a Curriculum Vitae outlining the credentials of the service provider (unless the CICB already has a copy on file). This treatment cost can only be accessed when it is not covered by other sources, such as the applicant’s place of employment or insurance benefits. The treatment must be completed within 18 months of receipt of this Order. Payment may be made directly to the treatment provider on a monthly basis, upon submission of an invoice and the required verification from the Applicant. The CICB may also consider such dental treatment expenses that were incurred between the time that the Applicant submitted his final set of documents to the CICB and the receipt of this Order. If there are such expenses, the CICB will deduct these from the pre-authorized $1,500.00 amount described above.
Award
27The CICB orders payment as follows:
Section 7(1) (a) prescription drugs $ 30.02
Section 7(1) (a) past dental expenses $ 353.33
Section 7(1) (a) future dental costs $1,500.00
Section 7(1) (d) Pain and Suffering $5,000.00
TOTAL AWARD: $6,883.35
Less: Future preauthorized expenses: -$1,500.00
TOTAL CURRENT AWARD $5,383.35
28The CICB recognizes that no amount of money can adequately compensate victims for the injustice they have suffered but also finds the amount of this Award to be reasonable within the context of the Act.
Payment
29THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $5,383.35
DATED at Toronto this 13th day of April, 2017.
M. Saleem Akhtar, Member