Re 1603-02686, 2018 ONCICB 27

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: M. Saleem Akhtar

Date: May 28, 2018

Indexed as: (Re) 1603-02686

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 pain and suffering and expenses as a result of physical assault that occurred on [date], 2015 where he sustained physical and psychological injuries. The incidents were reported to the Police and resulted in conviction.

Decision

2The CICB approves the claim for pain and suffering and awards the Applicant the sum of $11,000.00 for the reasons set out below.

3The CICB denies the claim in respect of expenses, as further explained in paragraph 27 of this Order.

Issues

4Pursuant to section 5 of the Act, I 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, and their impact on the day-to-day life of the Applicant.

5If the Applicant has met the above threshold, in deciding whether or not to exercise discretion to award compensation and the amount thereof, we must consider:

• all the relevant circumstances, including whether the Applicant’s behaviour may have directly or indirectly contributed to the injuries, pursuant to subsection 17(1) of the Act.

• whether the Applicant has refused reasonable cooperation with, or failed to report promptly the offence to a law enforcement agency, pursuant to subsection 17(2) of the Act.

• The Applicant must provide reliable evidence to support his claim for:

• expenses actually and reasonably incurred as a result of his injury, pursuant to subsection 7(1)(a) of the Act.

Hearing

6The hearing was conducted in writing on the basis of the materials contained in the Applicant’s file.

Documentary Evidence

7The CICB received the following documents with respect to the claim: Police Report dated [date], 2015, Hospital Records, Medical Reports from his Family Physician, Ophthalmologist, Therapy Report from his Social Worker/Therapist and his own victim impact statement.

8In describing details of the incident, the Applicant writes

I was on the boardwalk at the [location] when I observed a male in an irrational and threatening manner towards people. I stopped to calm him down when he viciously attacked me knocking me unconscious. While conscious, the attacker straddled me and pummeled my face. He only stopped when a brave passerby was able to pull him off me and restrained him. I awoke to the police and EMS arriving.

9In giving details of his injuries, the Applicant writes

Fractures of the jaw – Jaw wired for 8 weeks; Orbit blowout fracture – double and blurred vision; Infraorbital nerve injury – loss of sensation in lower eyelid, cheek, upper lip, gums and teeth; Internal nasal and cheekbone fracture – Difficulty breathing through nose and numbness; Possible dental work required. Initially, I spent five days in the hospital for observation and surgery. In the weeks thereafter, I underwent two more surgeries. As a result of these injuries, I’m prone to dizziness and headaches. I am unable to work or even perform some simple daily tasks. I still have a few more months of heeling before it is known if more surgeries are necessary. I endure much pain and discomfort, which causes me great anxiety and depression.

10Medical treatment / assessment reports, by and large, corroborate the Applicant’s version of his injuries. However, the CICB notes in his Social Worker’s letter dated [date], 2016 that the Applicant had pre-existing “depression and alcohol related” issues at least since December 2013.

11The “police questionnaire” on record corroborates the Applicant’s version of the incident. It adds that the Applicant

sustained very extensive injuries comprising of numerous fractures to his orbital bone and jaw. The victim had extensive swelling, bruising and bleeding. The victim required numerous surgeries and will have lasting ailments.

12The Offender was convicted of assault cause bodily harm contrary to the provisions of section 267 of the Criminal Code of Canada, RSC 1985, c.C-46.

Analysis and Decision

13I must determine, on a balance of probabilities, if the Applicant is a victim of violent crime under section 5 of the Act. This section provides that the victim’s injury must have resulted from a “crime of violence” constituting an offence against the Criminal Code of Canada. In 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.

14Section 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.

15Hence, 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 incident-related out-of-pocket expenses, as requested by the Applicant.

16The Applicant sustained physical injuries as well as emotional injuries as already described in paragraphs 10 to 12 of this Order.

17In support of his injuries claim, the Applicant has provided treatment/assessment reports, as already mentioned in paragraph 8 of this Order. I accept these treatment/assessment reports for the purpose of compensation in this matter.

18In every case before me, I am 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.

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.

20Based upon a careful review of the documentation, as already mentioned above, I find the Applicant not only a victim of a crime of violence in relation to the Offender within the meaning of and pursuant to subsection 5(a) of the Act but also accept that he sustained both physical and emotional injuries, as described and claimed by him in his Application, and which is also supported by Police Record as well as Treatment and Assessment Reports made available to me.

21In assessing compensation for pain and suffering, I have considered:

• The nature of the assault resulting in physical injuries to the Applicant;

• The possible emotional/psychological impact of the assault;

• The ongoing impact on the Applicants overall health, relationships and productivity.

22Section 17(1) of the Act obligates the CICB to consider all of the relevant circumstances of the case and to consider the principle of proportionality. The relevant circumstances include whether there was any conduct by the Applicant that contributed to his injury as well as the severity of the injury suffered. I must decide whether to grant compensation, deny compensation or allow a reduced award.

23After reviewing the evidence in its totality, I am convinced that issues mentioned in subsections 17 (1) and 17(2) of the Act have not been established in this matter. There is no evidence to suggest that the Applicant initiated the altercation or provoked it in anyway. The Applicant also fully cooperated with Police at all stages of the matter. Hence, there would be no negative imapct in terms of the outcome of the matter in relation to compensation.

24It is important to note that the CICB has wide discretion to determine whether or not to award compensation to a victim 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 a victim for compensation whole or to provide full indemnity to a victim. The CICB is mindful that the awards are not paid by the wrongdoer as would be the case if a victim 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.

25After 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, and to maintain consistency across the CICB, I award the Applicant $11,000.00 as compensation for pain and suffering.

26I have considered the Applicant’s claim for an unspecified amount of incident-related out-of-pocket expenses in respect to medical, dental and other costs such as eye glasses. The CICB generally requires original receipts and/or other supporting documentation for any expenses that are claimed, both to verify the amount claimed and to confirm that such costs were not covered by other sources, such as private insurance or public funds. In the absence of such evidence, and having found no compelling reason to deviate from its usual practice in this instance, the CICB denies this part of the claim.

Award

27The CICB orders payment as follows:

Subsection 7(1) (d) Pain and Suffering $11,000.00

TOTAL CURRENT AWARD $11,000.00

Payment

28THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $11,000.00