CRIMINAL INJURIES COMPENSATION BOARD
Adjudicators: Keith Forde and Louise Charette
Indexed as: (Re) 1705-01395
REVIEW DECISION
Introduction
1The Applicant has requested a review of the Order made by a single Member issued July 13, 2018, to be reported at 2018 ONCICB, in accordance with section 10(1) of the Compensation for Victims of Crime Act, RSO 1990 c.24, as amended, the “CVCA”.
2Section 10 provides:
(1) Where an application is heard by a single member of the Board under section 9, the applicant or the Minister may, within fifteen days after service of the decision of the member, require a hearing and review by the Board and the Board shall fix a time and place for the hearing and shall at least ten days before the day fixed cause notice thereof to be served upon the parties to the proceeding.
(3) The hearing shall be conducted and the jurisdiction of the Board shall be exercised by at least two members of the Board and the member whose decision is being reviewed shall not sit on the review.
(4) After a hearing and review by the Board under this section, the Board shall make its order in accordance with this Act and its order supersedes the order of a single member made under section 9 that is the subject of the hearing and review.
3Rule 19.2 of the CICB’s Rules states:
An applicant may request a review of the decision of a single member on the grounds that the decision contains a serious error of law or an unreasonable exercise of discretion.
Issue
4This Panel must decide whether the Applicant has identified a serious error of law or an unreasonable exercise of discretion in the original Decision.
Submissions made by the Applicant on the Review
5The Applicant argues the CICB made an error in law in the interpretation of section 265(1)(a) of the Criminal Code of Canada and, as well, an error in facts in finding that a crime of violence did not occur in this case. He submits that his evidence supports that the Alleged Offender applied force and that the force was intentional and therefore that an assault occurred.
6The Applicant advised the CICB that on the night of the incident he met the alleged offender while selling flowers at a local bar. Later on in the evening, he reluctantly agreed to drive the Alleged Offender and his friends home and, once at the location, he agreed to join this group for a game of pool. He says he had been at the apartment for less than fifteen minutes when he heard the Alleged Offender say “watch this”. He recalled being approximately eight or nine feet away with his back facing the Alleged Offender. As he turned around, the Alleged Offender threw a red paint ball which struck him in the right eye. The Applicant submits that the “watch this” prior to throwing the paint ball demonstrates the Alleged Offender’s intention as he would have been aware that the Applicant would have turned around to look at what he was making reference to.
7He also believes that when the Alleged Offender threw the paint ball, he was aiming at him. As he was turned away from him, this left him no opportunity to protect himself. He stated “you don’t throw things when people have their back to you for this very reason”. He submits that the Alleged Offender should have known that throwing the paint ball would have caused injury. For all these reason, the Applicant strongly believes that he was the intended target of the Alleged Offender’s action.
8The Applicant also pointed out inaccuracies in the Order of the single Member stating that it erred in fact while it assessed his testimony submitting that the throw was an “overhand” throw rather than an “overhead” throw which, according to him, would be more forceful. The Applicant also disputes the CICB’s analysis of his behaviour following the incident, concluding that is more likely than not that he initially viewed the incident as an accident or mishap rather than a violent crime. He advises the CICB that he felt it was a crime from the start however out of fear for his safety, he did not want the police to charge the Alleged Offender. The Applicant considers himself to be a victim of an assault and submits that the medical records and reports support his injuries.
9While the injuries were not fully addressed in the original decision because the Board did not find that a crime of violence occurred, the Applicant wrote and testified that immediately following the incident, he could not see out of his right eye and that as a result, he attended the hospital. He also advised the CICB that he also required follow up treatment. The Applicant reported permanent damage to his eye as a result of the incident. In support of his injuries, he submitted hospital records which confirm he sought medical attention following the incident, a medical report completed by the ophthalmologist, a medical report from the surgeon and a report from the optometrist. All the reports confirm a permanent injury to the Applicant’s eye. With respect to his emotional injuries, the Applicant notes that this incident has caused him financial difficulties and as a result, he became depressed. The report from the optometrist notes that the Applicant suffers from PTSD as a result of the threat of physical harm.
Analysis and Decision
10In this case, the original Member was not satisfied that the incident amounted to a crime of violence within the meaning of section 5(a) of the CVCA. The Member stated that, given the evidence before the CICB, it was unable to conclude that it was more likely than not that the Applicant was injured as a result of an intentional assault as defined in section 265(1)(a) of the Criminal Code of Canada as opposed to being injured in some other way. The CICB noted the following;
The Applicant must be able to provide the Board with cogent and reliable evidence to show that another person applied force to him, directly or indirectly and that the use of force was intentional (e.g the other person did not accidentally, reflexively or carelessly cause him harm). On a balance of probabilities, the Board is unable to conclude that the Alleged Offender’s actions in throwing a paint ball with his hand overhead amounted to the application of force intentionally, directly or indirectly without the consent of the other person. Based on the Applicant’s testimony as well as the police information on file, the Alleged Offender threw the paint ball when the Applicant was turned away from him. There is no indication that the Alleged Offender was speaking to the Applicant when he threw the paint ball. During his testimony, the Applicant provided no indication or explanation as to suggest that the Applicant intended to strike him. While it is possible that the Alleged Offender intended to strike the Applicant, it is equally plausible that he was attempting to break the paint ball on the floor, the pool table or the Applicant’s cowboy hat as the Applicant himself suggested during his testimony.
11The purpose of the review hearing is to review the decision of the single Member, not to hold a brand new hearing. The CICB will not interfere with the decision of a single member unless the panel finds that the decision contains an error of law or that there has been an unreasonable exercise of discretion.
12A review hearing is not a second opportunity at making a case by supplementing one’s previous testimony, by further explaining the evidence or by providing new facts that strengthen the claim.
13In a section 10 review, the Panel will only consider the evidence available at the time of the Decision and new evidence will only be considered if all of the following three circumstances apply:
a. The evidence could not have been obtained earlier with reasonable diligence on the part of the Applicant;
b. The evidence would probably have an important influence on the result of the case; and
c. The evidence is apparently credible.
14The CICB is not satisfied that the new evidence, provided by way of submissions to the CICB on the review, meets the above test. The evidence could have been provided earlier at the original hearing. The evidence is also inconsistent with the Applicant’s evidence from the original hearing and so its credibility is also in issue.
15In this case, the Applicant attempted to present his case in a different light and to add to his previous testimony, providing more explanation and new facts in an attempt to strengthen his case. As previously noted a review hearing is not a second chance at making your case and considering the new evidence in this case would not be appropriate.
16The Member noted in her Decision that given the evidence before her, she was unable to conclude that it was more likely than not that the Applicant was injured due to an intentional assault as opposed to being injured in some other way. She noted that the CICB did not have the factual basis to make a finding that the Alleged Offender intended to strike the Applicant with a paint ball and that the circumstances leading up to the incident suggested that it may have been an unfortunate accident. In this case, it was considered a possibility that the Applicant may have been struck accidentally, recklessly or carelessly and if that was the case, there was no intention to cause him harm.
17The Applicant argues that the Member made an error in law and in facts. It should be noted that not all inaccuracies in a decision are cause for the decision to be reversed. The inaccuracies in the CICB’s finding of facts alleged by the Applicant, even if accepted, may have significance for him personally, but are not errors that have any effect on the final outcome of the hearing.
18After carefully reviewing all the documentation in the Applicant’s claim, the evidence presented at the original hearing and his submissions for review, the CICB concludes that there was no error in law or unreasonable use of discretion. The review is dismissed and the original order stands.
Dated at Toronto on December 27, 2018
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Keith Forde, Board Member
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Louise Charette, Board Member