(Re) 1801-00204, 2018 ONCICB 45

CRIMINAL INJURIES COMPENSATION CICB

Adjudicator: M. Saleem Akhtar

Date: July 12, 2018

Indexed as: (Re) 1801-00204

ORDER

Introduction

1The Applicant is seeking financial compensation from the Criminal Injuries Compensation CICB (CICB) in accordance with the Compensation for Victims of Crime Act, RSO 1990, c. C.24, as amended (the “CVCA”). The Applicant is seeking pain and suffering as well as incident-related expenses and treatment costs. The incident of physical assault occurred on [date], 2016 where the Applicant sustained physical and psychological injuries. The incident was reported to the police and that resulted in conviction.

Decision

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

3The CICB approves additional funds in the amount of $600.00 for physiotherapy and another $600.00 for counselling therapy, as further explained below.

4The CICB denies claim of ambulance costs as well as loss of income, as further explained below.

Issues

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

6If the Applicant has met the above threshold, the CICB must decide whether or not to exercise discretion to award compensation and the amount thereof, and in doing so, the CICB must consider:

a) 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 CVCA.

b) 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 CVCA.

7The Applicant must provide reliable evidence to support his claim for expenses, loss of income and any other claims made.

Hearing

8It was an oral hearing. The Decision was based on the basis of the materials contained in the Applicant’s file as well as in view of the Applicant’s oral testimony and that of the police witness.

Documentary Evidence

9The CICB received the following documents with respect to the claim: police report dated [date], 2016, hospital records from [place] General Hospital, physiotherapy report, social worker’s report, photos of the Applicant’s injuries and his own victim impact statement.

10In describing details of the incident, the Applicant writes

I was at home when an acquaintance came to my house with a friend of his. They both told someone was coming over to beat me up. I locked the door at which time [Offender] unlocked the door to allow four of his friends wearing masks into my home…They chased me through the house…one of them hit me in the back of the head with a pistol and I ended up on the ground…Once I was on the ground I saw a barrel of a double barrel pointed at my head. The person holding the gun was yelling at me to stay on the ground or he would blow my brains out. I heard rustling in the other room (was being robbed for many items of value). I heard a blast and this is when I had been shot the first time…I just tried to pretend that I was dead. I didn’t want to be shot again. I heard another blast and this is the second time I was shot in my left upper thigh. The intruders ran out of the house…I was told that I had called my mother. I am not sure if I called 911 or someone else did. I remember someone telling me they were getting help. I just remember thinking I was going to die…I was rushed to the [place] General Hospital.

11In describing details of his injuries, the Applicant writes

I was shot in the upper portion of my left arm (between wrist and elbow) as well as in the left leg between knee and hip. The injuries were pretty serious…I had a very large hole in my left arm and leg…I had surgery that evening…I had a second surgery on [date], 2016…I, then, had another surgery on [date], 2016. This surgery was extensive and consisted of taking a flap from my right leg and placing it on my left arm to try to save my arm as well as replace the large hole that was missing from my arm. I also had a metal rod put into my left arm as my bone had been blown apart…Prior to being released, I did extensive physiotherapy on my legs as I basically had to relearn how to walk…I was in cast/splint…I could not get up from the bed until later in the month…

I was social and loved playing all sports. I played hockey, basketball and baseball. I had a promising career ahead of me. I had dreams to be an electrician…I have major anxiety and depression and PTSD. I can’t be in large crowds. I am afraid to go out alone. I still have flashbacks…I feel like I have lost my purpose. Everything I ever loved doing or enjoyed doing, I can’t do anymore. I have extensive scars and it is hard to look at them every day. I have had two additional surgeries and have been told that I will have more in the future…This incident has affected me in ways I don’t think I can ever explain to you. I am always afraid. I have panic attacks. I have very limited use of my left arm. I live with chronic pain…It has affected every aspect, my career, my competitive advantage in the working field, my ability to earn money, my ability to go to school, my ability to go to a mall and shop, my ability to go out in public, my daily activities simple things like doing up my own pants or shirts I cannot do…Emotionally, I feel like I am a mess. I have very bad panic attacks and anxiety. I have been in hospital for depression since this happened and suicide attempts. Socially, it has affected me in a very big way as I don’t really socialize anymore. I just stay home…I have daily pain and I am only [age]. I am terrified that as I get older, I am going to have more severe pain and this scares me as it leaves my future very guarded. I believe without a doubt that I will require life-time counselling…I am not in a place where I thought I would be at this age. I am almost [age] and have so many issues I cannot function. It is not fair…When it rains or is damp out, my arm aches and I have so much pain I can barely function…As time goes on, I truly wonder if I will ever be healed. I didn’t deserve this. No one does. I just want to be [name] again.”

12Medical treatment/assessment reports corroborate the Applicant’s version of his injuries.

13The police report, on record, corroborates the Applicant’s version of the incident. It adds that the Applicant sustained life-threatening injuries and had to undergo several surgeries.

14Three Offenders were convicted in this matter.

Applicant’s Oral Testimony

Incident

15In his sworn oral testimony before the CICB on June 12, 2018, the Applicant testifies that he was assaulted and shot twice with a shotgun causing him serious injuries.

16When asked by the CICB if he had any pre-existing issues with one or more of the accused, the Applicant stated that he was punched in the face by one of them while they were at a mall plaza on [date] of 2015. He added both the Applicant and this Offender were interested in the same girl. Prior to the girl’s interest in the Applicant, she was girlfriend of this Offender who punched the Applicant and told him not to mess up with him and his girlfriend.

17In response to a question from the CICB, the Applicant told that the Offenders demanded his phone and also robbed valuable items from the house. He added he threw his phone under his bed and did not give to them.

18Responding to another question, the Applicant told that, currently, there were outstanding charges against him for an alleged sexual assault. He added he had been implicated falsely and the charges would likely be dropped at the next hearing.

19When asked if he was involved in drug-related activities, the Applicant responded ‘no’.

Injuries

20The Applicant claimed that he sustained two gunshots. He can use only 22.5% of his hand. He feels constant pain in his hand and arm. It is pretty hard for him to walk and he gets tired. He cannot play his favourite sports of hockey or basketball or baseball, which emotionally hurts him a lot. He received a total of seven surgeries to repair his injuries. He has developed suicidal ideation and has become hyper-vigilant. He becomes anxious in big crowds. He experiences nightmares and flashbacks. Residual permanent scars remind him of the incident on a daily basis, which is frustrating and debilitating. He attended a lot of physiotherapy, maybe 40 sessions, and also counselling therapy from a social worker.

21In response to a question from the CICB, the Applicant requested approval of more funds for more physiotherapy and more counselling therapy.

Police witness testimony

22In his sworn oral testimony before the CICB on June 12, 2018, the police witness confirmed that the Applicant had no criminal history and was not known to police for any drug-related issues, prior to the incident. However, he added that, currently, he had pending proceedings against him for an alleged incident of sexual assault, in another jurisdiction.

Analysis and Decision

Crime of violence

23The CICB must determine, on a balance of probabilities, if the Applicant is a victim of violent crime under section 5 of the CVCA. This section 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 (the “Code”). 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.

24Section 11 of the CVCA provides that proof of conviction shall serve as conclusive evidence that the offence has been committed. Therefore, in light of section 11 of the CVCA, there is no question that the Applicant was a victim of a crime of violence involving the Offenders as proven through the conviction described above.

25Hence, the remaining issues to be decided by the CICB in this matter are as follows:

a) The nature and extent of the physical and emotional/psychological injuries sustained by the Applicant as a result of the foregoing assault;

b) Having regard to the relevant circumstances, whether compensation should be awarded and, if so, determine the amount; and,

c) Consider incident-related out-of-pocket expenses and future treatment costs as well as loss of income, as requested by the Applicant.

Injuries

26The Applicant sustained physical injuries as well as emotional injuries as already described in this Order.

27In support of his injuries claim, the Applicant has provided treatment/assessment reports, as already mentioned above. The CICB accepts these treatment/assessment reports for the purpose of compensation in this matter.

Amount of Compensation

28In every case before me, 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 CVCA. 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 CICB (1975), 1974 439 (ON CA), 5 O.R. (2d) 781.

29As such, not all injuries warrant compensation. As was noted by the Divisional Court in Pitters v. Ontario (Criminal Injuries Compensation CICB), [1996] O.J. No. 4339:

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.

30Based 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 offenders within the meaning of and pursuant to subsection 5(a) of the CVCA but also accept that he sustained both physical and emotional injuries, as described and claimed by him in his application and also in his oral testimony, and which is also supported by police record as well as treatment and assessment reports made available to me.

31In assessing compensation for pain and suffering, I have considered:

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

b) The possible emotional/psychological impact of the assault;

c) The ongoing impact on the Applicant’s overall health, relationships and productivity.

32Section 17(1) of the CVCA 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.

33After reviewing the evidence in its totality, I am convinced that issues mentioned in subsections 17(1) and 17(2) of the CVCA have not been established in this matter.

34There is no evidence to suggest that the Applicant initiated the altercation or provoked in anyway. The Applicant also fully cooperated with police at all stages of the matter. Hence, there would be no negative impact in terms of the outcome of the matter in relation to compensation.

35It 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 CICB) 1995 10629 (ON CTGD), 1995 OJ 1464 (Div. Ct) at para 5. The CVCA is not intended to make an applicant 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 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.

36After 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.

Expenses

37I have considered the Applicant’s claim in the amount of $50.00 in respect to ambulance costs. 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.

Future Counselling

38Based on the Applicant’s stated intention to continue counselling therapy and physiotherapy for some more time in the near future, the CICB authorizes additional funds up to $600.00 for physiotherapy and up to $600.00 for counselling therapy (exclusive of any applicable taxes). These funds are in addition to $1,800.00 already approved under section 14 of the CVCA. The physiotherapy and counselling therapy costs would be paid directly to a qualified treatment provider upon receipt of a Curriculum Vita outlining the credentials of the service provider (unless the CICB already has a copy on file). These sessions can only be accessed when the therapy sessions are not covered by other sources, such as the Applicant’s place of employment or insurance benefits or public funds. Therapy sessions must be completed within 36 months of receipt of this Order. It is the CICB’s practice to award up to $100.00 per session for therapy, or up to $125.00 per session for registered psychologists. Payment may be made directly to the treatment provider on a monthly basis, upon submission of an invoice and the required verification from the Applicant. The CICB may also consider counselling therapy and physiotherapy 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 amount described above.

Loss of Income

39With respect to the Applicant’s claim for loss of income, the CICB notes that it generally requires supporting documentation such as employer’s report, pay stubs or Income Tax records and/or medical confirmation of disability in order to verify an Applicant’s employment status and average net earnings at the time of the incident, and to determine whether any income-replacement benefits were received during the period being claimed, and to confirm the period of disability. In the absence of relevant supporting documentation, and having found no compelling reasons to deviate from its usual practice in this instance, the CICB finds that the Applicant has failed to establish his claim for income loss. Hence, the claim in that regard is hereby denied.

Award

40The CICB orders payment as follows:

Subsection 7(1) (a) Section 14 Award $1,800.00

Subsection 7(1) (a) additional future physiotherapy $600.00

Subsection 7(1) (d) additional future counselling $600.00

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

TOTAL AWARD $14,000.00

Less section 14 award + future treatment $3,000.00

TOTAL CURRENT AWARD $11,000.00

Payment

41The CICB orders that the following sums be paid forthwith to:

The Applicant $11,000.00