CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: M. Saleem Akhtar
Indexed as: (Re) 1608-04465
ORDER
Introduction
1This is an Application seeking compensation for physical and emotional injuries arising from the commission of a crime of violence in accordance with the Compensation for Victims of Crime Act, RSO 1990, c. C.24, as amended (the “Act”). The assault was committed against the Applicant by the Offender on [date], 2014 in the province of Ontario.
Decision
2The CICB approves the claim and awards him the sum of $6,000.00 as pain and suffering award for the reasons set out below and also out-of-pocket expenses in the amount of $91.61 and loss of income in the amount of $1,150.00.
Evidence
3In his Application before the CICB the Applicant described the incident under the heading “Details of the Crime” as follows:
I was on a business trip for my work, and was out with some work colleagues. I entered the washroom and…after I was done, I…noticed that there was a guy sitting on a chair next to the sinks. I thought he looked like a famous football player and asked him if anyone had ever told him he looked like Ben Roethlisberger. He immediately looked angry, stood up from the chair and stood over me. He accused me of calling him a rapist and was behaving in a threatening manner. I backed away from him and was attacked from behind by another individual who I didn’t even see or realize was behind me.”
The man had punched me in the face from behind me, causing me to fall to my knee. I knew my jaw was broken and I got up and ran from the bathroom for help. I ran behind the bar and asked the bartender to call an ambulance. Staff grabbed towels to soak up the blood that was going everywhere. An ambulance came and took me to the hospital.
4In terms of injuries, the Applicant described his injuries under the heading “Details of Injuries” as follows:
This unprovoked attack…broke my jaw in two separate places causing my bones to crumble in three separate pieces…I underwent emergency surgery on my face to repair the damage. I now have two metal plates in the lower portion of my jaw with screws holding it together…I may need further surgeries in the future, the screws may not hold properly long-term. My teeth are now aligned differently…I do not have the same range of motion in my jaw as I used to. I get aches in my face during cold weather…I had to eat a special diet, mostly ensure shakes at first because I could not chew food.
5There was an emotional impact on him as well. He was not able to play his favourite sports such as hockey, dodge-ball and downhill ski. He missed two days of national sales meeting for his job as well as about a month further off work while he was recovering. In his line of work, talking and interacting with people was a huge part of his job. With his jaw wired, he missed a lot of work. He was in a lot of pain and wasn’t able to socialize with family and friends.
6In support of his physical injuries, the Applicant has provided Treatment Reports from Hospital and photos of his injuries. These Reports corroborate the Applicant’s account of his physical injuries, as described above.
Police Report
7The Police Report, on file, by and large corroborates the Applicant’s version of the incident. After due investigation, the Offender was charged and convicted of assault cause bodily harm contrary to section 267(b) of the Criminal Code of Canada, RSC 1985, c.C-46.
Issues
8Pursuant to subsection 5(a) of the Act, the CICB must determine on a balance of probabilities:
Whether a crime of violence occurred against the Applicant that caused him injuries; and, if so;
The nature and extent of the injuries sustained;
Whether compensation should be awarded and if so, determine the amount;
Consider assault related expenses and loss of wages, as claimed by the Applicant.
Analysis and Decision
9The 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.
10In 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.
Crime of Violence
11Section 11 of the Act provides that proof of conviction shall serve as conclusive evidence that the offence has been committed. Therefore, in light of section 11 of the Act, there is no question that the Applicant was a victim of a crime of violence involving the Offender as proven through the conviction described above.
12Hence, the remaining issues to be decided by the CICB in this matter are as follows:
The nature and extent of the physical and emotional/psychological injuries sustained by the Applicant as a result of the foregoing assault, and
Having regard to the relevant circumstances, whether compensation should be awarded and, if so, determine the amount
Consider assault related treatment expenses and loss of wages, as claimed by the Applicant.
Nature of Injuries
13The Applicant claims that he had broken jaw in two places and had to get two metal plates installed in the lower jaw resulting in limited and reduced range of motion in his jaw. He may have to undergo additional jaw surgery in the future. His teeth have become differently aligned, not as straight as they were prior to the assault. The assault also impacted negatively on his career. A major part of his job is meeting people and speaking to them, but that was not possible professionally due to restricted jaw movement caused by the assault.
14In support of his physical injuries, the Applicant has provided Treatment Reports from [Name] Health Sciences, ambulance report, operative report, discharge summary and photos of his injuries. [Name] Health Sciences reports confirm jaw fracture ‘complex comminutes parasymphyseal fracture’ and jaw wired. These Reports corroborate the Applicant’s account of his physical injuries, as described above. The CICB accepts these reports in relation to this matter and compensation thereof.
15In support of his claim with regards to his psychological injuries, the Applicant has not submitted any treatment reports and/or any professional advice from a physician or a therapist/counsellor or a social worker, which might have discussed the impact that the assault may have had on him.
16In the absence of any relevant supporting documentation, it is difficult, if not impossible, to gauge the extent of 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, and for some period of time.
Compensation
17The Act gives the CICB broad discretion to determine whether compensation ought to be awarded in any given case and, if so, the amount. Awards from the CICB are paid using public funds. They are not paid by the wrongdoer as would be the case if a victim pursued compensation through a civil action.
18In 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 Board, in accordance with natural justice. Sheehan and Criminal Injuries Compensation Board (1975), 1974 ONCA 439, 5 O.R. (2d) 781.
19As 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.
20Section 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
21Based upon a careful review of the documentation, on file, the CICB finds the Applicant not only a victim of a crime of violence (assault cause bodily harm) within the meaning of and pursuant to subsection 5(a) of the Act, but also accepts that he sustained physical and emotional injuries, as claimed by him.
22In assessing compensation for pain and suffering, the CICB has considered:
The nature of the unprovoked vicious assault on the Applicant causing him physical injuries;
The emotional/psychological impact of the assault;
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 of this case 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 $6,000.00 as compensation for pain and suffering.
Expenses
24The Board has considered the Applicant’s claim in respect to prescription drugs in the amount of $91.61, for which receipts have been provided. The CICB finds such costs to be both reasonable and within the context of the Act and, therefore, awards $91.61 for such costs.
25The CICB has considered the Applicant’s claim in respect to ambulance costs in the amount of $60.00. The CICB generally requires original receipts and/or other supporting documentation for any expenses that are claimed, both to verify the amounts claimed and to confirm that such costs were not covered by other sources, such as private insurance. In the absence of such evidence, and having found no compelling reason to deviate from its usual practice in this instance, the CICB denies the expense claims for ambulance costs.
26The CICB has considered the Applicant’s claim in respect to travel to treatment costs. According to the record available on file, the incident happened on [date], 2014 and the Applicant was admitted in the Hospital a few hours later on [date], 2014. In addition to other treatments, surgery was performed on [date], 2014 and the Applicant was discharged from the Hospital on [date], 2014 with the advice that he should get in touch with Dr. [Name] in [City], which is the Applicant’s residence. Hence, there seems to be no special cost to travel to treatment. As such, this part of the claim is denied.
Loss of Income
27The CICB has considered the Applicant’s income loss claim in the amount of $5,000 - $10,000.00 for the period from [date], 2014 to [date], 2015. According to the Employer’s Report, the Applicant returned to work on [date], 2015. Based on the Employer’s Report, the Applicant was off work for 4 weeks and 3 days, due to the injury resulting from the assault. It is the CICB’s practice to reimburse income loss to a maximum of $250.00 per week and having considered the particular circumstances of this case, the CICB finds no compelling reason to deviate from that practice. Accordingly, the CICB now awards a total of $1,150.00 for income loss (4 weeks x $250.00 per week and $150.00 @ $50.00 per day for three days).
Award
28The CICB now orders payment as follows:
Section 7(1)(a) Prescription drugs $ 91.61
Section 7(1)(b) Loss of income $1,150.00
Section 7(1)(d) Pain and Suffering $6,000.00
TOTAL CURRENT AWARD: $7,241.61
29The CICB recognizes that no amount of money can adequately compensate victims for the injustice they have suffered but also finds the amount of the award to be reasonable within the context of the Act.
Payment
30THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $7,241.61
DATED at Toronto this 13th day of April, 2017.
M. Saleem Akhtar, Member