Re 1609-04782, 2018 ONCICB 82

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicators: Christine McGoey Veda Rangan

Date: October 10, 2018

Indexed as: (Re) 1609-04782

RECONSIDERATION DECISION

Introduction

1The Criminal Injuries Compensation Board (CICB) heard this Application and issued its Decision on May 9, 2018. On June 17, 2018, the Applicant requested reconsideration of the CICB's decision.

2On July 24, 2018, Vice Chair Guy Savoie ordered a reconsideration of the decision based on the Applicant’s claim that there was new evidence.

3The reconsideration was conducted in writing on the basis of the materials in the CICB's file.

Decision

4The Panel denies the request for reconsideration. Our reasons follow below.

Test for Reconsideration

5Rule 19.3 provides the CICB with the discretion to reconsider its decisions where it is satisfied that:

a. there are new facts or evidence that could potentially be determinative of the Application and that could not reasonably have been obtained earlier; or

b. the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or;

c. the decision is in conflict with established jurisprudence or CICB procedure and the proposed reconsideration involves a matter of general or public importance; or

d. other factors exist that, in the opinion of the CICB, outweigh the public interest in the finality of CICB decisions.

6Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered. Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case. The CICB's decisions are final and are subject to appeal only on questions of law. Therefore, the CICB will only reconsider a decision where it is satisfied the tests in Rule 19.3 are met and where these circumstances outweigh the public interest in finality of orders and decisions.

7The Applicant relies on Rule 19.3(a) in support of the request, having indicated in a letter to the CICB dated June 17, 2018, that there “are new facts or evidence that could not have been reasonably obtained prior to the hearing by the victim”.

8On August 1, 2018, the Applicant provided written submissions for the Reconsideration, a copy of a General Occurrence from the Police Service relating to a report by the applicant on [date], 2016, and a copy of Lifford Wine Agencies Ltd. v. The Alcohol and Gaming Commission, 2004 15792 (ON SC).

9In his written submissions the Applicant submitted that he was denied procedural fairness as a result of a prehearing ruling March 27, 2018, when another panel denied his request to summon certain police witnesses to the hearing and the CICB's refusal to summon the police officer (police officer) who was the lead investigator on the alleged assault to provide evidence at the original hearing.

10The Applicant initially provided two pages of a General Occurrence report which indicated he reported the assault to police on [date], 2016. It listed the police officer as the lead investigator and the offence of aggravated assault as ‘Founded’. It also identified an individual as a suspect (Alleged Offender). The Applicant testified at the original hearing that he had been with the Alleged Offender at a club in [date] of 2013, on the night his ankle was injured. He did not know at the time whether he had fallen, slipped or been hit due to the pain in his ankle. Hospital records indicate he told the staff at the hospital that he had injured his ankle in a fall. He testified that this was at the request of the owner, who had accompanied him to the hospital. The Applicant testified that he was told sometime later by a third party, whose name he did not wish to disclose, that the Alleged Offender hit his ankle with a golf club. He testified he tried to contact the Police about it in 2015.

11These pages provided no information relating to the Alleged Offender other than his name. Two witnesses are also listed with no further information.

12The Reconsideration hearing was originally scheduled for August 20, 2018. When the Occurrence was filed by the Applicant prior to that hearing, the CICB adjourned the hearing to September 28, 2018, to allow the Applicant to file any material which might provide the CICB with information or evidence relating to the three individuals listed in the Occurrence and their roles with respect to the alleged assault on him.

13On August 21, 2018, the Applicant filed a Supplemental Report by the police officer outlining her investigation of the Applicant’s allegations. The investigation included the following.

• The police officer called the first witness on December 21, 2017, and asked to speak with him about the incident which occurred four years before. The first witness indicated that the Applicant had filed a civil lawsuit and angrily stated ‘this was all because the Applicant wants money’.

• The police officer suggested that the Applicant’s witness provide an anonymous tip through Crime Stoppers to provide the information to police. The Applicant indicated that he didn’t think this would happen and said that he hadn’t spoken to the witness in some time.

• The police officer called the club to see if anyone could recall an assault from 2013, and spoke to two employees. Neither would provide their name nor answer questions. She spoke to another party who could not recall an incident with a golf club.

• On [date], 2018, the officer called the second witness. The Applicant indicated in his materials he is the son of the Alleged Offender. The second witness told her he did not know about the assault and he didn’t want to speak with police as there was nothing to speak about. The police officer asked to speak with his father and the second witness told her he was quite ill. He said he would have him call her once his mother returned.

• Later that day, the Alleged Offender’s wife returned the police officer’s call and indicated that her husband had great difficulty speaking due to a medical issue and had no intention of providing a statement.

• On [date], 2018 the police officer called a DJ at the club. He advised the police officer he arrived at work and saw a male going to the hospital. He said he didn’t know who injured the male as he did not witness it. He indicated he would ask others at the club if anyone remembered that day.

14The Occurrence outlines allegations by the Applicant provided in his statement to police which was available to the CICB at the original hearing. It also refers to an attendance at 4 District in late 2017. He provided a statement in which the Applicant said he was having a confrontation with an unknown male who was causing issues for him at the club. The altercation escalated and the Applicant stated he grabbed a table or chair to create a distance and at that time his ankle gave out. He did not know how this happened and did not see who did it. The Applicant stated he was later told by an employee of the club that the Alleged Offender hit him with a golf club. The Applicant would not provide the name of the witness and would not tell police if the person still worked at the club or the individual’s gender. He indicated he thought that providing the information would endanger that person.

15The police asked for the medical records relating to the injury to the Applicant’s ankle, and noted that on admission to Hospital the Applicant told medical staff his injury was called by a fall. The record also noted two months later, in [month], 2013, the applicant still said the injury was from a fall/twist on the stairs at the restaurant. The Applicant stated the first witness told him to say the injury was from a fall and that he was fearful when he was dropped off at the Hospital.

16There were further contacts between the Applicant and the police officer which included his concerns that he was being targeted by organized crime figures. On [date], 2018 the police officer explained that a charge would not be laid and advised him the next day that the case would be closed.

17Even if we were to accept that this information could not reasonably have been obtained at the time of the original hearing, we are still left with the issue of whether it is potentially determinative of the Application. While the Supplemental Report filed by the Applicant provides some new details of the police officer's investigation, it does not advance the Applicant’s claim that he was assaulted and therefore compensable. In essence, it does not assist in clarifying whether the Applicant’s injury was as a result of a fall or slip, or crime of violence.

18In addition, it does not support his claim of denial of procedural fairness with respect to the CICB's refusal to summon the police officer for the original hearing. The CICB is conscious of the need to exercise its summons authority only where oral evidence is necessary for the determination of issues. The pretrial ruling, which was based on the original Application, determined that the police officer’s oral evidence would not have assisted the Applicant. The basis for that ruling is confirmed by the content of her Supplemental Report which was provided by the Applicant for the Reconsideration and outlined above.

19Accordingly, the request for Reconsideration is dismissed.