CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: M. Saleem Akhtar
Indexed as: (Re) 1605-03477
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 compensation for pain and suffering for the physical and emotional injuries that he claims he sustained as a result of the incident that happened on [date], 2015. There was no conviction in this matter. The Applicant is also claiming incident-related expenses including future dental treatment.
Decision
2For the reasons set out below, the CICB approves the claim in relation to the incident that happened on [date], 2015 and caused him injuries at the hands of the Alleged Offender, as mentioned above, and awards the sum of $6,000.00 as compensation for pain and suffering.
3The CICB also approves already incurred out-of-pocket dental treatment expenses in the amount of $584.35, as further explained in paragraph 51 of this Order.
4The CICB also approves legal fee contribution in the amount of $400.00 to be paid to the Applicant’s Lawyer, as further explained in paragraph 52 of this Order.
5The CICB also approves future dental treatment costs up to $2,000.00 to be used within 36 months from the date of this Order, as further explained in paragraph 53 of this Order.
Issues
6Pursuant to section 5 of the Act, the CICB must determine on a balance of probabilities,
Whether a crime of violence occurred against the Applicant that caused injuries; and if so;
The nature and extent of the injuries sustained;
Whether compensation should be awarded and if so, determine the amount;
Consider incident-related expenses, as requested by the Applicant.
Documentary Evidence
7In his written Application to the CICB, the Applicant described the incident under the heading “Details of the Crime” as follows:
I was at a family gathering enjoying the company of my extended family…We were catching up and making small talk, as you usually do during extended family gatherings.
[Alleged Offender] is the father of my sister-in-law. I had lent [Alleged Offender] my cell phone within the days leading up to the assault. He had called his wife. She in return called my phone in an attempt to reach [Alleged Offender] I mentioned this in passing to [Alleged Offender] at the kitchen table. The next thing I knew, [Alleged Offender] was out of his seat, had come around the table to meet me with a full glass pint in his right hand and forcibly smashed it into the left side of my face. The glass pint shattered on impact and tore through my cheek. My face was pouring blood from at least four different locations. Someone reacted quickly and found a towel to apply pressure to my face. Another family member immediately drove me to the hospital…The doctor began to stitch me up and told me I was lucky I didn’t lose my eye. My face was severely damaged - a tooth had broken through my cheek and would require dental attention later. There was a significant amount of nerve damage throughout my cheek and jaw area.
8In his Application, the Applicant described his injuries as follows:
The physical side of the injury is the most noticeable. My face is obviously scarred as a result of the assault. The scarring extends from just below my left eye to my jaw line. The impact of the glass to my face lacerated my skin in several locations and directions. As a result, there was a significant amount of stitches that were required. I had to revisit the hospital for my stitches to be removed. The lacerations caused serious permanent nerve damage. I continue to take medication in order to alleviate some of the discomfort caused by the nerve damage and expect to be on this same regimen for the remainder of my life. My left eye seems to water all the time. I expect this has something to do with the assault as the doctor said I came dangerously close to losing my eye. The damage extended that far up my cheekbone. I have had to have dental work done as a result of the assault. My tooth pierced through my cheek. The assault has been responsible for some further dental damage.
I am reminded of this assault on a daily basis. I am reminded each day as I wake up and look in the mirror…I am reminded each time I am stared at a little too long by a stranger in the grocery store or bank. I am a motivational speaker. Since the assault, I am very much self-conscious every time I have to make a public appearance. The lasting injuries on my face is noticed and commented on by those around me…Every single time I step out of my house, I’m self-conscious of how I look and how people are going to respond to me. I’ve never had such feelings of insecurity until this assault.
9Police Report: Incident was not reported to Police.
Oral Hearing
10In his sworn oral testimony before the CICB on January 17, 2018, the Applicant told that he and some other extended family members were enjoying a family get-together. The Alleged Offender who is the father of the applicant’s brother’s fiancé was also in attendance. During the course of conversation, the Applicant talked about the alleged offender’s wife and told that he had contacted her over the internet. At this, something triggered in the Alleged Offender’s mind, and he struck the Applicant on his left cheek with a glass before fleeing from the scene. The Applicant was in a shock and was losing blood. He was transported to the Hospital for treatment.
11In response to a question from the Panel, the Applicant stated that he had consumed 6 cans of beer. However, he wouldn’t call himself intoxicated at the time.
12When advised that the Hospital Report suggests that the applicant was “drunk and in a fight” the applicant responded he wasn’t sure. He added he was not a party to any fight. He did not initiate any altercation or fight.
13Responding to another question, the Applicant stated that he could not recall if there was any confrontation between him and the Alleged Offender, prior to the assault.
14When asked by the Panel why he did not report the matter to Police, the Applicant advised that the Alleged Offender was the father of his brother’s fiancé. Hence, he thought if he pressed charges against the Alleged Offender, he might lose his brother, and that could trigger more family issues. The Applicant added that he had not met the Alleged Offender since the assault.
15In response to a question from his Lawyer, the Applicant advised that the glass used as a weapon in the assault was a thick one. Also, the Alleged Offender was a strong person and he struck the Applicant with quite a force. The Applicant reiterated that if he had reported the matter to Police, that could have caused negative relations between him and his brother and also with other family members.
16In terms of physical injuries sustained, the Applicant testified that he got six lacerations of different sizes along with a concussion. He lost teeth and, in fact, his teeth went through his cheek causing serious injuries. He is left with residual scarring, both internal and external. At times, he still feels pain, tightness and discomfort while talking or smiling. In order to numb his pain, he had to take ‘nerve pills’. His left eye keeps watering most of the time. He suffered a concussion which had its impact that lasted for months. He felt depressed, anxiety and had anxiety attacks. He got into more drinking as a coping mechanism for his state of mind. Residual scarring reminds him of the assault every day. He has lost self-confidence because of the scarring and nerve damage.
17In response to a question from his Lawyer, the Applicant stated that the injury he sustained caused a negative impact on his ability as a motivational speaker. He feels insecure talking in public. In terms of relationships, on a date, he finds that the female looks at his face in a different way and that makes him feel insecure and he goes more reserved.
18When asked by the Panel if he gained fewer assignments for public-speaking after the assault, the Applicant replied “no, he got more assignments”
19When asked by the Panel if he ever attended counselling sessions to address his emotional state of mind, the Applicant advised “yes”. However, he added that he could not procure reports to present to the CICB.
20Referring to the information available on record, the Panel asked the Applicant if he had pre-existing health issues, both physical and emotional, the Applicant stated ‘yes’ and then admitted that he had suicidal ideation, was involved in substance abuse, sustained concussions up to 60-70 over time, suffered from chronic traumatic brain injury, had on-going issues with ex-wife, particularly since the divorce, had undergone financial loss in the amount of $70,000.00 in gambling etc. However, he added that his emotional issues got aggravated due to the sudden assault causing injuries to his face, leaving behind residual scarring.
21When asked by the Panel if there was any report / assessment identifying any nerve damage caused by the assault, the Applicant stated ‘no’.
22When advised by the Panel that according to the Dentist’s Report dated [date], 2016, “prognosis is good – patient recovered.” Therefore, there seems to be no reason and no base to ask for future dental work. The Applicant submitted that he was advised by his Dentist that no immediate work was needed. However, in the future, he would need incident-related dental work. The Applicant asked if he could submit a report and an estimate from his dentist to that effect. The CICB agreed and the Applicant was given time up to February 20, 2018 to furnish Dentist’s Report as well as dental cost estimate.
23Referring to his eye injury claim, the Panel asked if the Applicant had seen an eye specialist to determine the extent of injury, and if so, if he submitted a report to the CICB. To this, the Applicant replied that he did not see an optometrist or an ophthalmologist.
Lawyer’s Submissions
24It was not a consensual fight. The incident happened at a family gathering. The Applicant did not press charges because he did not want to ruin family relations. Reporting the matter and getting the Alleged Offender charged would not have been helpful within the family dynamics. The Applicant severed relationships with the Alleged Offender after the assault. In this context, the Applicant and the Lawyer submit that the former’s decision not to report the incident to Police should not be considered detrimental in the outcome of this matter in terms of compensation.
25The assault caused injuries that had detrimental impact on the life of the Applicant. His pre-existing health and emotional issues got exacerbated. His anxiety level aggravated negatively affecting his interaction with other people. His dental injuries need more work, but he does not have funds to get that done. Therefore, the Applicant requests approval for future dental work, as per his Dentist’s advice.
26The Lawyer also requested for legal fee contribution in the amount of $400.00 for helping the Applicant prepare his case and representing him at the hearing, as per the CICB’s practice.
Analysis and Decision
27With respect to an incident alleged by the Applicant to have occurred on [date], 2015, the fact that there has not been a conviction is not fatal to the Applicant’s claim.
28Section 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
29In considering this Application, the CICB has had regard to Section 5 of the Act which reads as follows:
Where any person is injured or killed by any act or omission in Ontario of any other person occurring in or resulting from,
(a) the commission of a crime of violence constituting an offence against the Criminal Code (Canada), including poisoning, arson, criminal negligence and an offence under section 86 of that Act but not including an offence involving the use or operation of a motor vehicle other than assault by means of a motor vehicle;
(b) lawfully arresting or attempting to arrest an offender or suspected offender for an offence against a person other than the applicant or his or her dependant or against such person’s property, or assisting a peace officer in executing his or her law enforcement duties; or
(c) preventing or attempting to prevent the commission of an offence or suspected offence against a person other than the applicant or his or her dependant or against such person’s property.
30The CICB must determine, on a balance of probabilities, if the Applicant is a victim within the meaning of and pursuant to section 5 of the Act.
31In this case before the CICB, the evidence indicates that the Applicant’s injury arose as a result of a crime of violence committed against him by the Alleged Offender that falls within the scope of subsection 5(a) of the Act. This subsection provides that the Applicant’s injury must have resulted from a “crime of violence” constituting an offence against the Criminal Code of Canada, RSC 1985, c.C-46.
32The 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 incident 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.
33Under the legislation, it is for the CICB to decide the matter, on the evidence adduced before it, and upon proper construction of its statutory mandate.
34Based upon a careful review of the documentation, on file, and the oral testimony of the Applicant at the hearing as well as his Lawyer’s submissions, the CICB finds the Applicant, on a balance of probabilities, to be a victim within the meaning of and pursuant to subsection 5(a) of the Act.
Nature of Injuries
35The Applicant claimed that he sustained both physical and psychological injuries resulting from the incident happening on [date], 2015. The Applicant’s account of his injuries has already been described in paragraphs 11 to 12 and 20 to 27 of this Order.
36In support of the Applicant’s physical injuries claim, he has submitted incident-related treatment and assessment reports from the Hospital and his Dentist. These reports corroborate the Applicant’s account of his physical injuries as given in his Application as well as described in his testimony before the CICB. The CICB accepts these reports for the purpose of compensation in this matter.
37In support of his emotional injuries claim, the Applicant has not provided any incident-related treatment and/or assessment reports from any health professional such as a psychologist/psychiatrist or a therapist or a counsellor.
38In the absence of professional medical assessment, it is difficult, if not impossible, to assess any long-term emotional impact of the incident on the Applicant. Nevertheless, the CICB understands that such a traumatic incident does leave behind emotional scarring, at least to some degree, and for some amount of time.
Amount of Compensation
39In 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.
40As 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).
41The Applicant’s oral testimony was inherently consistent with his written submissions made in his Application. He was straight forward and honest in responding to questions from the CICB. He was not evasive in his responses. His demeanour was that of a reliable and credible person. His testimony was convincing, credible and reliable. Hence, the CICB accepts the Applicant’s account of the incident as well as that of his physical and emotional/psychological injuries and their resultant impact on him, as described and claimed by him. The CICB also accepts the Applicant’s position that he did not report the matter because of family dynamics. The CICB is aware that it is not unusual or uncommon for applicants not to report the assault against them due to family pressures and family dynamics.
42Based upon a careful review of the documentation, on file, as well as the Applicant’s testimony at the oral hearing, the CICB finds the Applicant not only a victim 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 claimed by him in his Application and also described at the oral hearing.
43In assessing compensation for pain and suffering, the CICB has considered:
The nature of the assault causing physical injuries, as described above;
The possible emotional/psychological impact of the incident;
The possible ongoing impact on the Applicant’s overall health, relationships and productivity.
44It 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. The Act is not intended to make an applicant for compensation whole or to provide full indemnity to an applicant. The CICB is mindful that awards are not paid by the wrongdoer as would be the case if an applicant pursued compensation through a civil action. The CICB also considers previous awards made by it in similar fact cases/situations in order to determine a reasonable amount of compensation.
45After reviewing the evidence in its totality, both written and oral, 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, and to maintain consistency across the CICB, the CICB awards the Applicant $6,000.00 as compensation for pain and suffering.
Expenses
46The CICB considered the Applicant’s claim in the amount of $584.35 in respect to dental treatment costs, for which proof of out-of-pocket expenses was provided. The CICB finds such costs to be both reasonable and within the context of the Act and, therefore, awards $584.35 for such costs.
Legal Fee Contribution
47The CICB has considered the Lawyer’s request for legal fee contribution. Pursuant to section 22 of the Act, the CICB orders payment in the amount of $400.00 to Counsel for legal fees.
Future pre-authorized counselling costs
48Based on the Applicant’s stated intention to enter into incident-related dental treatment in the near future, the CICB authorizes up to $2,000.00 as a contribution for dental treatment expenses 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 can only be accessed if it is not covered by other sources, such as the applicant’s place of employment or insurance benefits or public funds. Dental treatment must be completed within 36 months of the receipt of this Order. Payment may be made directly to the treatment provider, 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 times 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 $2,000.00 amount described above.
Award
49The CICB now orders payment as follows:
Section 7 (1) (a) Pre-authorized Dental Treatment Costs up to $2,000.00
Section 7 (1) (a) Out-of-pocket dental treatment costs $ 584.35
Section 7 (1) (d) Pain and Suffering $6,000.00
Section 22 Cost: Legal Fee contribution to the Solicitor / Law Firm $ 400.00
TOTAL AWARD (AND COSTS TO DATE) $8,984.35
Less Future Dental Treatment -$2,000.00
TOTAL CURRENT AWARD: $6,984.35
50The CICB recognizes that no amount of money can adequately compensate applicants for the injustice they have suffered but also finds the amount of the award to be reasonable within the context of the Act.
51THE CICB ORDERS that the following sums be paid forthwith to:
Counsel In Trust for Applicant $6,584.35
Counsel $ 400.00
DATED at Toronto this 7th day of March, 2018.
M. Saleem Akhtar, Member