Re 1608-04432, 2018 ONCICB 78

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: M. Saleem Akhtar Date: October 09, 2018 Indexed as: (Re) 1608-04432

ORDER

Preliminary Matters

1Prior to the commencement of the hearing, the Panel advised the Applicant of the potential difficulties that this Application faced in respect to subsection 17(1) of the Compensation for Victims of Crime Act, RSO 1990, c. C.24, as amended (CVCA), which reads as follows:

17(1) In determining whether to make an order for compensation and the amount thereof, the Board shall have regard to all relevant circumstances, including any behaviour of the victim that may have directly or indirectly contributed to his or her injury or death.

Introduction

2The Applicant is seeking financial compensation from the Criminal Injuries Compensation Board (CICB) in accordance with the CVCA. The Applicant is seeking pain and suffering compensation. The Applicant is also seeking compensation for incident related out-of-pocket expenses and loss of income. The incident happened on [date], 2015 which caused the Applicant physical and emotional injuries. The Offender was convicted of aggravated assault in this matter.

Decision

3For the reasons set out below, the CICB approves the claim and awards the Applicant the sum of $12,000.00 as pain and suffering compensation.

4The CICB denies incident-related expenses claim, as further explained below.

5The CICB also denies loss of income claim in the amount of $50,000.00, as further explained below. However, the CICB has approved an amount of $1,500.00 on compassionate grounds.

Issues

6Pursuant 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.

7The 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 section 5 of the CVCA.

8The Applicant must provide reliable evidence to support his claims for:

a. Expenses actually and reasonably incurred as a result of his injury pursuant to subsection 7(1) (a) of the CVCA. The Applicant is seeking compensation for out-of-pocket expenses with regards to ambulance, hospital, prescription drugs, and counselling therapy in the amount of $100.00, $400.00, $300.00 and $1,000.00 respectively.

b. Income or pecuniary loss incurred as a result of his total or partial disability affecting his capacity for work pursuant to subsection 7(1) (b) of the CVCA. The Applicant is claiming loss of income in the amount of $50,000.00.

Hearing

Documentary Evidence

9The CICB received the following documents with respect to the claim: Application giving details regarding the incident and the resultant injuries, police report dated [date], 2015, treatment/assessment reports, Canada Revenue Agency (CRA) Tax Returns for the years 2011 to 2015 and two paystubs for the pay period [date], 2015 to [date], 2015 and [date], 2015 to [date], 2015.

Incident

10In describing details of the crime, the Applicant writes

I was heading to the Mac’s by my house with my girlfriend and the individual [name] tried to attack her and me and I had tried to stop him. He pulled out a knife and stabbed me multiple times.

Injuries

11In terms of his injuries, the Applicant writes

I was stabbed six times – 2 times in the abdomen and 4 in the left arm. My spleen was punctured and removed. I went to [name] Hospital for surgery and remained in the hospital for treatment for a month. Since I have been released, I have been going to physiotherapy for the past couple months.

12According to police report

(…) the victim had between 7-8 puncture wounds and numerous slash marks. The victim sustained injuries to his left hand, left forehand, left elbow and left abdominal region. Medical staff also believed that the victim had a fractured rib along the left side of his ribcage.

13The hospital report confirms the Applicant’s narration of his injuries and adds that he had to undergo surgery to repair the damage. In addition, he had to do quite a few follow-up visits to the hospital in order to address complications caused by the surgeries/injuries.

Police Report and Disposition

14The matter was reported to police on [date], 2015. After due investigation, the Offender was charged with attempted murder. However, later, the Offender was convicted for aggravated assault.

Oral Testimony

Police Witness Oral Testimony

15In his oral sworn testimony on September 14, 2018, the police witness referred to an incident that had happened on [date], 2015 and he thought that was the reason of this altercation happening on [date], 2015. The police witness testified that there was a party at the Applicant’s residence on [date], 2015. At that time, there ensued an altercation between a female attending the party and the Offender in this matter who was also at the party. The Applicant intervened and separated them. In that matter, the Offender had punched the female 5 times in her face. The Applicant asked the Offender to leave, which the latter did not appreciate.

16On [date], 2015, the Applicant and a female were walking through a plaza when they encountered the Offender. The Applicant and the Offender became involved in a physical altercation. According to a witness, the Applicant approached the Offender and engaged in a physical altercation in retaliation for the latter’s actions at the former’s house on [date], 2015. During this altercation, initially, the Applicant had the upper hand. The Offender, then, retrieved a knife from his pocket and chased the Applicant into a dead-end and forcefully thrust the knife numerous times into the left side of the Applicant. The Applicant started bleeding profusely and he frantically ran from where he had been cornered. The video camera captured the Offender chasing the Applicant until the latter entered a restaurant and the Offender, then, backed off and fled the scene in a waiting vehicle.

17Police responded to a 9-1-1 call. The Applicant was transported to [name] Hospital for treatment of his injuries. One day later, on [date], 2015, the Offender surrendered. After due investigation, the Offender was charged with attempt murder. However, later, he was convicted for aggravated assault.

18The Panel asked the police witness if the Applicant and the Offender were known to police for criminal activities. The police witness testified that the Applicant had been convicted in 2014 for assault peace officer, possession of stolen property, and falsify credit card. In 2016, he was convicted for assault. Currently, he has cases against him pending in the court. These matters include obstruct peace officer, shoplifting, possession of stolen property, and forcible confinement. His current probation started in [month] 2016 and will go until [month] 2019. The police witness stated that the Offender had been known to police since 2011, however, he was not convicted until 2016 for assault and 2018 for aggravated assault.

Applicant’s Oral Testimony

19In his oral sworn testimony before the CICB on September 14, 2018, the Applicant testified that he was in agreement with the police witness testimony except that he did not start the fight. It was the Offender who was physical with the female accompanying the Applicant. Both the Offender and the Applicant looked at each other and the altercation started. Both parties began fighting.

20The Panel asked the Applicant if the fight was consensual. The Applicant replied it was not a formal consensual fight as a result of an agreement. It just started. He added that someone may call that to be a consensual fight, but there was no formal consent involved. Both parties looked at each other and the altercation ensued. He added he had no intention of fighting. That just happened. Also, he did not know if the Offender had a knife on him. The Applicant thought that the Offender had a plan to fight, that’s why he was carrying a knife, which he used to inflict serious life-long injuries to the Applicant.

21The Panel asked the Applicant if the female accompanying him was the same who was involved in the incident of [date], 2015 and that the female and the Offender were known to each other. The Applicant responded ‘yes’ to both parts of the question.

22The Panel asked the Applicant if there was a relationship between the female and him and if so, whether there was any child between the two of them. The Applicant responded that the female was his girlfriend and that she was the mother of his child.

23The Panel inquired from the Applicant if he had any objection regarding his criminal record, as testified by the police witness. The Applicant stated ‘no’.

24Regarding his injuries, the Applicant testified that he sustained six stab wounds – two stab wounds to his abdomen and four to his left arm. He had to undergo surgery. His spleen was punctured so badly that the surgeon had to remove that. His radial nerve was cut and his wrist dropped. He had to have several follow-up visits to the hospital. He had to undergo physiotherapy for a very long time. His hand has constant numbness. Weather inflicts a negative impact in terms of pain and feeling. As his hand and arm are weak with limited strength, he cannot play sports that he used to do in the past, which is frustrating.

25When asked by the Panel how long it took his physical injuries to heal, the Applicant replied the injuries have not fully healed yet. He added the injuries may never heal. He may never be the same that he used to be.

26When asked what emotional impact the incident and/or the injuries had on him, the Applicant replied he experienced nightmares, felt nervous around people and lost trust with people. He added he has these emotional feelings to this day though they are not that often and not that intense. He gave an example and that if he watched a TV show where a knife was shown or used, that would be enough to trigger a flashback and a nightmare. He added that he saw and consulted several professionals to address his emotional issues. Scarring has an emotional impact in that whenever he looks at his scars that remind him of the scary incident.

27In response to a question what his source of income was at the time, the Applicant replied that he working for a company as a carpenter making $20.00 per hour and that he was working 30 hours per week. He added that had been on ODSP since 2016 due to permanent physical injuries and their emotional impact. He confirmed that he received social assistance for some time in 2015 as well.

28When the Panel advised the Applicant that there was no relevant documentation provided to the CICB by him in support of his out-of-pocket expenses claim in the amount of $1,800.00 and loss of income claim in the amount of $50,000.00, the Applicant requested the CICB to afford him time up to September 28, 2018 so that he could gather and submit relevant documentation to the CICB for its consideration before a decision would be made. The CICB acceded to his request and granted him time up to September 28, 2016 stating that if no more supporting documentation was provided by him, the CICB would proceed making a decision based on the evidence available to it as of September 28, 2018.

Analysis and Decision

Crime of Violence

29The 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”).

30In 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. The standard of proof in cases before the CICB is “on a balance of probabilities.” However, clear, cogent and convincing evidence is required to satisfy the standard of proof. The CICB must not consider the Applicant’s evidence in isolation; rather, the CICB is required to assess the totality of the evidence presented.

31In light of section 11 of the CVCA, 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.

32Hence, the remaining issues to be decided by the CICB in this matter are as follows:

a. The nature and extent of the injuries as a result of the foregoing incident, and

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

c. Consider out-of-pocket expenses and loss of income claims, as requested by the Applicant.

Nature and Extent of Injuries

33The Applicant’s injuries, as described by him in his Application as well as in his oral testimony, have already been described above in this Order.

34In support of his injuries claim, the Applicant has submitted reports from [name] Hospital, which corroborate his version of his injuries, as already mentioned above. The CICB accepts these reports/documents for the purpose of compensation in this matter.

Amount of Compensation

35In 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 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 Board (1975), 1974 439 (ON CA), 5 O.R. (2d) 781.

36Based upon a careful review of the documentation, on file, including police and treatment reports as well as the oral testimony of the Applicant and that of the police witness, the CICB finds the Applicant, on a balance of probabilities, not only to be a victim of a crime of violence within the meaning of and pursuant to subsection 5(a) of the CVCA but also accepts that he sustained physical and emotional injuries, as a result thereof. Therefore, the Applicant is compensable.

37In assessing compensation for pain and suffering, the CICB has considered:

a. The nature of the incident causing injuries;

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

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

38It 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 CVCA is not intended to make a victim for compensation whole or to provide full indemnity to a victim. The CICB is mindful that awards are paid using public funds. They 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, and to maintain consistency across the CICB.

Section 17 Issues

39As is the case with all applications that come before it, the CICB is required to consider the provisions of subsection 17(1) of the CVCA, as cited at the outset of this Order.

40The CICB considered the police witness testimony in that there was a witness who stated that the Applicant initiated the altercation and also that the fight may be consensual. After weighing this information with that of the Applicant’s testimony, the CICB is unable to conclude with certainty that the Applicant initiated the altercation or that it was a consensual fight. Even if, it is accepted to be a consensual fight, no one consents to be harmed to the degree that the Applicant suffered. Based on the Applicant’s testimony, which the CICB found to be credible and compelling, the CICB accepts that the Applicant did not initiate the fight, which resulted in serious injuries to him.

41The CICB also considered the criminal history of the Applicant (his convictions in 2014 and in 2016 as well as his matters currently pending before courts). The CICB did not find any connection between his criminal history and this incident, currently before the CICB for adjudication.

42Even if the CICB would find the Applicant’s behaviour at the time to be somewhat a relevant circumstance, having weighed the proportionality of the Applicant’s conduct against the severity of the injuries sustained, as already described above, the CICB finds it appropriate to award compensation to the Applicant without reduction.

43After 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, the CICB awards the Applicant $12,000.00 as compensation for pain and suffering.

Expenses

44The CICB has considered the Applicant’s claims in respect to out-of-pocket expenses for ambulance costs, hospital, prescription drugs and counselling therapy costs. The CICB generally requires original receipts and/or other supporting documentation for any expenses that are claimed, both to verify the amounts 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.

Loss of Income

45With respect to the Applicant’s claim for income loss in the amount of $50,000.00, the CICB notes that it generally requires supporting documentation such as employer’s report, pay stubs, Income Tax records and medical confirmation of disability in order to verify a Applicant’s employment status and average net earnings at the time of the incident, and to determine whether any income-replacements benefits were received during the period being claimed, and to confirm the period of disability. The Applicant has not provided employer’s report that might have helped to determine period of disability as well as if the Applicant received any income-replacement benefits. Canada Revenue Agency (CRA) Income Tax Return documentation from 2011 to 2014 shows that the Applicant was primarily on Social Assistance. In his testimony before the CICB, the Applicant told that he had been on Ontario Works / ODSP since 2016. He also stated he was in receipt of Social Assistance (OW) in 2015 as well. Although the Applicant has provided two pay stubs for the pay periods, but in the absence of employer’s report, any documentation to establish period of disability as well as receipt or lack thereof of any other benefits, the CICB in unable to determine if the Applicant sustained loss of income.

46In 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 and the claim in that regard is hereby denied. The Applicant has also not submitted any supporting documentation to substantiate his claim for income loss on behalf of his care-giver. Hence, that part of the claim is also denied for lack of supporting documentation. However, the CICB takes a compassionate view and considering that the Applicant was trying to turn a page in his life in terms of his financial health, but due the injuries, he was hospitalized for some time and that he had to be in and out of hospital in connection with treatment of his serious injuries for a period of time, the CICB approves $1,500.00 as a contribution to the Applicant.

Award

47The CICB now orders payment as follows:

Subsection 7(1) (b) contribution $ 1,500.00

Subsection 7(1) (d) Pain and Suffering $12,000.00

TOTAL CURRENT AWARD $13,500.00

48The CICB recognizes that no amount of money can adequately compensate victims for the injustice they have suffered but also finds the amount of the award to be reasonable within the context of the CVCA.

Payment

49The CICB orders that the following sums be paid forthwith to:

The Applicant $13,500.00