Criminal Injuries Compensation Board
Adjudicator: M. Saleem Akhtar
Indexed as: (Re) 1507-00248
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 compensation for pain and suffering for the physical and emotional injuries that she claims she sustained as a result of the alleged physical assault committed against her on [date], 2014. The Applicant is also requesting for loss of income/wages.
Decision
2For the reasons set out below, the CICB approves the claim in relation to the physical assault committed against her on [date], 2014 by the Alleged Offender, as mentioned above, and awards the Applicant the sum of $5,000.00 as compensation for pain and suffering.
3The Applicant’s loss of wages/income claim is denied, as per the details given in paragraph 23 of this Order.
Issues
4Pursuant to subsection 5 of the Act, the CICB must determine on a balance of probabilities:
Whether a crime of violence occurred against the Applicant that caused injuries; and if so;
The nature and extent of the injuries sustained;
Whether compensation should be awarded and if so, determine the amount;
Consider loss of income/wages, as requested by the Applicant.
The Evidence
5In her Application before the CICB, the Applicant described the “Details of the Crime” as follows:
- I was working a night shift…when I was violently assaulted by an inpatient…(the Alleged Offender) approached (me) at 06.30 hr requesting to use her cell phone…I advised her that due to her previous history of misuse, her cell phone was not available to be given to her. At that point, she began shouting and protesting her guidelines…She then re-approached the nursing station and forced her way into the nursing station…Upon entry, she immediately lunged at me and struck my nose with her open hand…she grabbed my left hand and twisted my left index finger in an upward motion. She then struck my face, head, neck and back repeatedly before lunging at my hair…She pulled chunks of hair and more continued to fall out after the fact. This all happened so quickly and during this time, this patient did not say a word. She was focussed solely on hurting me…Thankfully, my colleagues came to my assistance…My partner was called and informed of the incident. He later arrived at my workplace, picked me up and took me to the hospital where I was seen by the physician on staff.
6In her Application, the Applicant described the details of her injuries as follows:
- As a result of this horrific attack, I was not able to sleep and felt physically and mentally exhausted from this experience. For the longest time, whenever I closed my eyes, I saw her angry facial expression charging at me and physically hurting me. I continued to relive this experience in my mind. I hurt and felt bruised and sore all over my body for months following. This experience has affected my confidence as a nurse and has made me reconsider my chosen profession…I am not the person I used to be. The attack has left me with undesirable qualities. It has manifested itself through generalized Anxiety, difficulty sleeping and insomnia. I…struggle with sleep deprivation that the insomnia creates. It has affected my memory, recall, concentration, co-ordination and speech and I often find myself slurring my word when speaking or giving verbal reports to my colleagues…It has affected my circadian rhythm, which has resulted in hormonal imbalances. I have become hypersensitive and am easily brought to tears. I feel fragile and vulnerable most days…I have always been attentive, open and trusting with my patients. This attack took advantage of that. I am now internally pre-occupied with personal safety and am easily startled due to my heightened anxiety. It has changed the way I relate to my patients…I feel I have aged significantly beyond my years.
7Police Report on record:
After due investigation, the police charged the accused with Assault contrary to the provisions of section 266 of the Criminal Code of Canada R.S.C 1985, c.C-46 (the “Code”). However, the accused was found “Not Criminally Responsible” in this matter.
Analysis and Decision
8The CICB 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 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.
9In 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.” Clear, cogent and convincing evidence is required to satisfy the standard of proof. In essence, the CICB must determine whether the Applicant’s allegations regarding the incident are substantially the most probable version of events to have occurred. The CICB must not consider the Applicant’s evidence in isolation; rather, the CICB is required to assess the totality of the evidence presented.
10Under the legislation, it is the CICB that is required to decide whether a relevant offence, “a crime of violence”, has taken place. It is for the CICB to decide the matter, on the evidence adduced before it, and upon proper construction of its statutory mandate.
Crime of Violence
11With respect to incident of assault alleged by the Applicant to have occurred on [date], 2014, the fact that there has not been a conviction is not fatal to the Applicant’s claim.
12Section 16(1) of the Act provides that compensation may be awarded whether or not a person has been prosecuted or convicted of the offence giving rise to the injury or death.
13Based upon a careful review of the documentation, on file, the CICB finds the Applicant, on a balance of probabilities, to be a victim of a crime of violence within the meaning of and pursuant to subsection 5 (a) of the Act.
Nature of Injuries
14The Applicant claimed that she sustained both physical and emotional injuries, as already described in paragraph 7 of this Order.
15In support of the Applicant’s injuries claim, she has submitted treatment and/or assessment reports from Hospitals. The CICB accepts these reports for the purpose of compensation in this matter.
16Based on a careful review of the documentation on file, the CICB finds the Applicant not only to be a victim of a crime of violence (assault) pursuant to subsection 5(a) of the Act but also accepts that the Applicant suffered both physical and emotional injuries as a result of the assault. Therefore the Applicant is compensable.
Amount of Compensation
17In 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 Act. There is only a right to apply for compensation, which may be granted or refused at the discretion of the Board, in accordance with natural justice. Sheehan and Criminal Injuries Compensation Board (1975), 1974 439 (ON CA), 5 O.R. (2d) 781.
18Based upon a careful review of the documentation, on file, 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 Act but also accepts that she sustained both physical and emotional injuries, as claimed by her in her application. Therefore, the Applicant is compensable.
19In assessing compensation for pain and suffering, the CICB has considered:
The nature of the assault causing physical injuries;
The emotional/psychological impact of the assault;
Any ongoing impact on the Applicant’s overall health, relationships and productivity.
The CICB also considered that the Applicant was abused at her workplace while she was serving an inpatient at a Mental Health Facility.
20It 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 an applicant for compensation whole or to provide full indemnity to an applicant. The CICB is mindful that awards are paid using public funds. They 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.
21After 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 $5,000.00 as compensation for pain and suffering.
Loss of income/wages
22According to the documentation submitted to the CICB including the Applicant’s Employer’s Report, her potential earnings, during the period being claimed ([date], 2015 to [date], 2016) would have been $26,216.09. Against this, the Applicant received benefits in the amount of $24,399.44, which is more than 90% of her potential earnings during the same period. The CICB understands that, during the period of disability, as mentioned above, the Applicant did not have to incur expenses that are usually associated with working outside of one’s home such as, business attire, dry cleaning, public transit, gas and parking, day care for children, restaurant meals, and incidentals. As a result, in the absence of evidence to the contrary, it is the CICB’s view that the Applicant did not sustain an actual wage loss since 10 to 15% difference is offset by the cost savings related to the above factors. Hence, the Applicant’s wage loss claim is thereby denied.
Award
23The CICB now orders payment as follows:
Section 7 (1) (d) Pain and Suffering $5,000.00
TOTAL CURRENT AWARD $5,000.00
24The CICB recognizes that no amount of money can adequately compensate applicants for the injustice they have suffered but also finds the amount of the award to be reasonable within the context of the Act.
Payment
25THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $5,000.00
DATED at Toronto this 6th day of March, 2018.
M. Saleem Akhtar, Member