(Re) 1704-01016, 2018 ONCICB 7

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Keith Forde

Date: February 23, 2018

Indexed as: (Re) 1704-01016

ORDER

Introduction

1The Applicant asks the Criminal Injuries Compensation Board (CICB) to compensate him for injuries resulting from an alleged crime of violence which occurred on [date], 2017, in accordance with the Compensation for Victims of Crime Act, RSO 1990, c. C.24, as amended (the “Act”).

2The Applicant is seeking compensation for pain and suffering incurred from an alleged act of assault, perpetrated by the Alleged Offender, a co-worker. The Applicant is also asking the CICB to compensate him for treatment expenses.

3The Applicant reported the alleged assault to the Police who conducted an investigation. The Police investigator concluded that there were no reasonable and probable grounds for arresting the Alleged Offender and no charges were laid.

Decision

4The CICB denies the Applicant’s claim for the reasons set out below.

Issues

5The 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 as a result of this crime of violence committed against him, he suffered an injury pursuant to section 5 (a) of the Act:

• The CICB is required to determine whether a crime of violence occurred and what injuries, if any, resulted;

• The CICB must assess all relevant circumstances and whether or not compensation should be awarded and if so, the amount; and

• The CICB must also determine whether the Applicant’s expense claim for treatment expenses is reasonable within the scope of the Act.

Evidence

The Applicant’s Evidence

6The Applicant appeared at the hearing and gave the following affirmed testimony:

• The Applicant and the Alleged Offender worked at the same restaurant for a few months. On [date], 2017, after the restaurant had closed for the day, he and the Alleged Offender were working together and were the only two left in the restaurant. The Applicant said that he was the chef and the Alleged Offender was the dish washer. When the Applicant gave the dishes to the Alleged Offender to wash, he became angry and used swear words.

• The Applicant said that he went to the washroom and upon returning to the kitchen, the Alleged Offender squeezed his neck up against the wall and threatened to kill him.

• The Applicant testified that the incident was captured on CCTV cameras which were installed in the restaurant.

• The Applicant said that after the assault he left the restaurant on foot when he felt dizzy and as a result, he fell down. He immediately called a taxi and was taken to the Hospital;

• The Applicant said that he never returned to his chef job as he was scared of the Alleged Offender.

• The Applicant said he was interviewed by the Police in the emergency department of the Hospital on the date in question and subsequently on the phone. The Applicant said that he told the Police about the CCTV cameras as that was his only proof as to what had occurred.

• The Applicant informed the Panel Member that the Police told him that they viewed the video and that the Alleged Offender had pushed him slightly. When the Applicant asked the Police to charge the Alleged Offender, the Police told him they would not and if he wanted the Alleged Offender charged, he should go to a justice of the peace and lay a private information.

• The Applicant also informed the CICB that he was on medication that made him forget things.

7The Applicant provided the CICB various documents in support of his claim.

8The CICB was in receipt of numerous Medical Reports from the Hospital which noted that the Applicant presented on the day in question with neck trauma. He said that he was strangled and pushed up against a wall hitting his head. The Applicant was treated and released.

9The CICB was also in receipt of a Medical Report from the hospital dated [date], 2017, where the Applicant presented on his own complaining of depression, suicidal ideation and deliberate self-harm.

10The Report noted that the Applicant was uncooperative, not concerned, quiet or withdrawn, disengaged, unmotivated, resistant and defensive, guarded, hostile entitled, negative, irritable and easily upset. The Applicant was seen by psychiatry and as a result of his vague evasive presentation, he was placed on a Form 1. The Applicant testified at his hearing that he has attributed his depression and suicidal ideation to the incident of [date], 2017.

11The CICB was in receipt of a chiropractic report where the Applicant was seen and received treatment for his spine injury. The Applicant told this treatment provider that he was involved in an altercation at work which turned violent, he was pushed up against a wall and was strangled. Of note, the Applicant also said that he broke free and while running away, tripped and fell backwards on the pavement and bumped his head. At no time did the Applicant mention this to the Police, the Hospital or at his hearing that he tripped and fell bumping his head while running away.

Injuries

12The Applicant noted in his primary information to the CICB the following physical injuries:

• Trouble swallowing;

• Throat pain;

• Neck pain; and

• Headaches.

13The Applicant testified at his hearing that he now suffers from spinal and hip pain as a result of the incident with the Alleged Offender.

14The Applicant noted in his primary information to the CICB the following psychological/emotional injuries:

• The stress of the incident caused him to attend the hospital on [date], 2017;

• He is afraid of the Alleged Offender;

• He is unable to sleep properly after the attack;

• He feels anxious and unmotivated;

• He takes no pleasure in doing things he once enjoyed;

• He performed poorly at work immediately after the incident; and

• He finds it demoralizing that he was fired from his job as a cook because of the incident.

Alleged Offender’s Evidence

15The Alleged Offender appeared at the hearing at an off-site location and gave the following affirmed testimony:

• The Alleged Offender said that when he started to work at the restaurant as a dishwasher and delivery person, he met the Applicant who was already working there as a cook. Shortly after he started to work at the restaurant, the Applicant came over to the Alleged Offender’s work station and inquired about his marital status and if he was homosexual. The Alleged Offender laughed and refused to engage the Applicant in such a conversation as he thought it was a joke. The Applicant then told the Alleged Offender it was all right if he was homosexual that way he would not have to spend money on women. The Alleged Offender again said that he laughed it off and ignored the Applicant’s comments.

• The Alleged Offender said that after the above encounter, the Applicant began to make his work at the restaurant difficult. For example, when the Applicant had to take the garbage to the garbage room he would drop it on the kitchen floor so that the Alleged Offender would have to pick it up. The Alleged Offender said that he told the Applicant on multiple occasions not to drop the garbage on the floor and to place it in its proper place. However, the Applicant refused to do so and told him that it was not his job. The Alleged Offender said he even complained to the manager about the Applicant’s actions.

• The Alleged Offender said that when he complained to the manager, he told him to bear with him as he was looking for another cook. When the Applicant found out the Alleged Offender had complained to the manager, he started to insult the Alleged Offender calling him racial names and wanting to know why he did not stay in Africa. Again, the Alleged Offender said he complained to the manager about the Applicant’s behaviour.

• The Applicant then told the Alleged Offender he was going to show him how difficult it was going to be to work at the restaurant. The Alleged Offender said that the Applicant urinated on the floor on purpose, forcing him to clean it on a regular basis.

• On February 5, 2017, one night after the dishes were washed, the Alleged Offender went to the washroom to see if the Applicant had urinated on the floor. He said that the Applicant pushed him first and he pushed him back and told him not to ever touch him again.

• After the incident, the Alleged Offender went home and sometime later he received a call from his manager inquiring as to what had taken place at the restaurant.

• The Alleged Offender said that the police came to the restaurant and watched the CCTV camera two or three times and asked him what had taken place and he gave them a statement. The Alleged Offender informed the Panel Member he had complained to the management about the Applicant’s behaviour many times before the incident date.

Analysis

16The fact that there has not been a conviction for a crime of violence is not fatal to the Applicant’s claim. Section 16(1) of the Act provides that compensation may be awarded whether or not a person has been prosecuted or convicted of the offence that gives rise to the injury or death. The onus however, is on the Applicant to prove, on a balance of probabilities, that he was a victim of a crime of violence pursuant to section 5(a) of the Act and that he suffered an injury as a result of the crime.

17In reaching its decision in this matter, the CICB has given careful consideration to all of the evidence presented, including the oral evidence of the Applicant, the oral evidence of the Alleged Offender, the documentary evidence from the Applicant and the documentary evidence supplied by the investigating Police Officer. The CICB denies compensation for the following reasons.

18After viewing the CCTV video, the Police Investigator noted the following:

• In the video, the complainant is seen wiping his shoes with his apron. The suspect then enters the picture and attempts to get by the complainant, at which time the complainant leans backs and blocks I bumps into the suspect with his back I buttocks while he was bending over to clean his shoes. The suspect and the complainant exchange words at which time the suspect pushed the complainant up against the wall.

19The CICB has no reason to disbelieve the Investigator’s account of what was captured in the video. The video is also consistent with the evidence of the Alleged Offender.

20On the other hand, the CICB finds the Applicant’s testimony to be unreliable and not credible given that his account of the incident greatly varied from what was captured on the surveillance video.

21The CICB finds that while the Applicant may have been injured by the Alleged Offender in the altercation, the evidence suggests that the Alleged Offender acted in self-defence and did not use unreasonable force in doing so.

22The Applicant’s non-disclosure to the Hospital or the Police Investigators of his additional injury from falling to the pavement and bumping his head immediately after the incident is also suspect.

23Therefore, the CICB is unable to find that the Applicant was a victim of a crime of violence. As a result, the Applicant’s claims for pain and suffering as well as treatment expenses are denied.