(Re) 1705-01386, 2018 ONCICB 23

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Veda Rangan

Date: April 19, 2018

Indexed as: (Re) 1705-01386

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 an award for pain and suffering and expenses as a result of a physical assault that occurred on [date], 2015, where he sustained physical and psychological injuries. The incident was reported to the police but did not result in criminal charges.

Decision

2The CICB denies the claim for the reasons set out below.

Issues

3The Applicant is required to prove, on a balance of probabilities, not only that he was a victim of a crime of violence but also that his injuries resulted from the crime pursuant to subsection 5(a) of the Act.

4The Applicant must provide reliable evidence to support his claims for expenses actually and reasonably incurred as a result of his injury pursuant to subsection 7(1)(a) of the Act. In this case, the Applicant is requesting cost of orthodontic services in the amount of $7,000.00

Evidence

Documentary Evidence

5The Applicant states that on [date], 2015, he was at home doing chores and working on his personal finances and career options. He was hit from behind and landed on his face on the hardwood floor in his living room. His roommate at the time discovered him there on the floor and called 911. Everyone thought it was just an accident so only paramedics were sent to the scene and the Applicant was taken to the Hospital. It was only when the Applicant was released from the Hospital on [date], 2015 that he became aware that it was not an accident as some items were missing from his home.

6He was re-admitted to the Hospital due to sepsis, acute renal failure and vision problems and was eventually discharged on [date], 2015. When he arrived at home, he found his safe missing and called the Police. In addition, he states that he was hospitalised with major injuries and had no memory of the incident other than what he managed to piece together after he returned home. The Police attended his home and due to the lack of evidence of a robbery or an assault, no charges were laid. They did not believe further action was required.

7Police Report:

• On [date], 2015 Police received a radio call to attend the home of the Applicant for a suspicious incident. Upon arrival, the Police spoke to the Applicant and [Roomate], his roommate. [Roomate] advised the Police that his partner, the Applicant, had sustained serious facial injuries on [date], 2015 and the Applicant was also receiving text messages from an unnamed person.

• [Roomate] advised that he found the Applicant face down with his hands behind his back beside the couch in the living room in a pool of blood. He called 911 and paramedics attended the scene. [Roomate] advised that after the incident he noticed that the door to their home was open. The Applicant told the Police that he could not remember what happened on [date], 2015 and he was unsure whether the door was locked.

• The Report also states that on [date], 2015 when the Applicant returned home from the Hospital he noticed that his safe was missing. He stated that the safe contained approximately $2,000 and some paperwork. The initial call to 911 was classified as a fall and so Police were never called.

• The Police found the living room had been cleaned of all the blood. Officers inspected the staircase and did not observe any marks or scrapes. Blood was not located anywhere else in the home except where the Applicant was found.

• The Police synopsis contained the following summary: “remembers early part of the day and taking the garbage out; brought safe downstairs which contained $2,000; woke up in ICU and was told by nurse he had fallen; had extensive facial injuries; had no recollection of what happened; and returned home from hospital on [date] to discover suitcase-type safe to be missing.

8Hospital Report dated [date], 2015:

• The Report stated that the Applicant was admitted to Hospital on [date], 2015 and was discharged on [date], 2015. The Applicant presented to Hospital on [date], 2015 after reports of a fall down one flight of stairs. He was found in the stairwell by his roommate who called for the ambulance. He was taken to the hospital via EMS. The Report also notes obvious facial trauma. He had “raccoon eyes” with a laceration over the right medial eyebrow with evidence of active bleeding. The Applicant also had small lacerations on his lip.

• A CT Scan showed the extent of the Applicant’s injuries which include: multiple facial bone fractures; severely comminuted nasoethmoidal fractures; fractured border on the nasal lacrimal canals bilaterally; fractured nasal septum with fractures extending to the olfactory groove and crista galli; fracture of the left zygomaticofrontal suture extending to the lateral margin of the left orbit; fracture of left zygomatic arch; severely comminuted fractures of anterior, posterolateral and medial margins of the maxillary sinuses bilaterally; fracture of the right zygomatical maxillary junction; comminuted fractures of the orbital floors with depression of orbital floor fractures primarily on the right; fracture of the medial and lateral pterygoid plates bilaterally; no intracranial hemorrhage; and no CT scan evidence of acute traumatic brain injury.

• The Report states that the applicant left the Hospital against medical advice before consulting services could complete a final assessment and arrange a follow up. He was contacted several times to return to the Hospital but he refused. His partner and substitute decision maker returned to the Hospital to receive the Applicant’s appropriate discharge paper and was given instructions for the care of the Applicant.

9Report from Paramedics

• The Paramedic Report states that the [age] year old Applicant had an unwitnessed fall at home. He was found with decreased loss of consciousness lying on floor in the corner of the living room with significant facial injuries. He was lying in front of an open metal animal crate. He lives in a second floor apartment with a staircase up to the third floor. Roommates on scene reported to the paramedics that they heard two loud bangs and it sounded like the Applicant fell down the stairs. The staircase, it was noted in their Report, was located approximately 15 feet from where he was found. The EMS also notes that the Applicant had difficulty breathing. In the report the paramedic adds: “patient reports that he used Ecstasy X1 at approx. 0200 hrs. Patient does not have recollection of event.”

10Expense Report:

• Report dated [date], 2017.The doctor had submitted an estimated cost for orthodontic services, listed to be $7,000.00.

Oral Evidence

11The Applicant testified at the hearing that the he was found face down in the corner of his living room. He doesn’t recall if he had left the front door unlocked after he had taken the garbage out. He lives on the 2nd floor of a rental building. He stated that he had a suitcase-type safe in the living room containing his passport, other documents and $2,000.00. The staircase was carpeted. His dog was outside and the door was found open.

12While at the Hospital the Applicant was informed by the Doctor that he was pushed from behind and his Roommate also told him that his hands were behind his back. The Doctor also noted in the report he had fallen down and appeared as if he had consumed some alcohol. At the hearing, the Applicant described the nature of his injuries, the limitations imposed by it and his lengthy stay at the Hospital.

13The Police Witness at the hearing is a Detective. He testified that he became involved with the case a month after the initial incident. After taking the necessary information from the Applicant and his Roommate, Police interviewed several people in the area. In the absence of forensic evidence, the Applicant’s inability to provide details about the incident, and no known witnesses to the incident to locate a suspect, Police were unable to continue with their investigation.

Analysis and Decision

14The central issue in this case is whether there could be a finding, on a balance of probabilities, that the Applicant was injured as a result of a crime of violence. While there is ample documentation in support of the Applicant having been seriously injured on [date], 2015, there are significant gaps in the evidence with respect to how the Applicant’s injuries occurred.

15The Applicant appears to have no coherent recollection of what transpired that evening. The only witness, who talked to police investigators a month after the incident, was his roommate, [Roomate]. He said he did not witness an assault and only saw the Applicant after the fact on the floor at the foot of the staircase in a pool of blood.

16Police documentation on file with the CICB indicated that the Police received a call regarding an unwitnessed fall down the stairs. The report notes that the Applicant was found face down in a pool of blood at the foot of the stairs. The Police Witness also testified that “two thuds were heard”, as reported by the Applicant’s Roommate.

17At first the Applicant claimed he remembered nothing about the incident or how the injury was caused. His partner [Roomate] advised the Police that after the incident, he noticed that the door to their home was open. The Applicant was unsure whether the door was locked after he took the garbage bags out that day. There is no evidence of someone breaking into the house. The Police had no forensic evidence to investigate as the matter came to their attention a month later. In addition, the Police had interviewed several witnesses and were unable to conclude that the Applicant was assaulted.

18The Applicant advised that while he cannot remember what happened on [date], 2015, many days later he found his suitcase-like safe missing along with $2,000.00 and some papers. At the hearing he testified that only the money and the actual safe were missing and the perpetrator had left the important documents such as the passport behind. It is his understanding that someone came into the apartment and stole the safe and also assaulted him, however, there is no evidence of this before the CICB.

19In the CICB’s view there would have been no time for an intruder to enter the second floor of the house, hit the Applicant, remove the money from the safe and then run out without being seen. Also, the evidence indicates that the Applicant’s Roommate came out of the room immediately after he heard the loud noise. The noise heard by the Roommate like a thud was likely from the fall and not from an assault.

20A careful review of the injuries indicates that the majority of the Applicant’s injuries are facial. He was found facing down in a pool of blood. The injuries therefore appear more consistent with a fall.

21In this case, the evidence is such that even after a detailed review of it, the CICB is left with a fundamental unanswered question: Was there a crime of violence?

22Unfortunately, the CICB finds that there is inconclusive evidence to indicate the Applicant’s injuries were sustained as a result of a crime of violence. The medical records suggest the Applicant’s injuries were sustained as a result of a fall. Without knowing what happened before the fall, the CICB is unable to make a determination as to whether a crime of violence was committed. Therefore, given the Applicant’s vague recollection of the incident and the absence of any supporting evidence that a crime of violence occurred, the CICB must deny the Application for compensation.