CRIMINAL INJURIES COMPENSATION BOARD
Adjudicators: Janet MacEachen, David Fine, Noeline Paul
Indexed as: (Re) 1502-98325
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, R.S.O. 1990, c. C.24, as amended (CVCA). The Applicant is seeking compensation for pain and suffering as well as treatment expenses as a result of an assault that occurred on [date], 2013 when he sustained physical/psychological injuries. The incident was reported to police on the day the incident occurred. The Alleged Offender was initially charged with simple assault, which was upgraded to assault causing bodily harm by the officer in charge of the investigation when the Applicant reported to him, after attending hospital, that the injuries were more serious than he first thought. The matter was resolved in court on [date], 2013 when the charge was withdrawn and the Alleged Offender entered into a Peace Bond. One of the conditions of the Peace Bond was to stay away from the Applicant.
Decision
2The CICB approves the claim and awards the Applicant the sum of $5,000.00 for the reasons set out below.
Issues
3The absence of a conviction does not mean that the CICB is precluded from making an order of compensation. Subsection 16(1) of the CVCA provides that compensation may be awarded whether or not a person has been prosecuted or convicted of the offence giving rise to the injury. The 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 subsection 5(a) of the CVCA.
4If the Applicant has met the above threshold, in deciding whether or not to exercise our discretion to award compensation and the amount thereof, we 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, and
c. any benefit, compensation or indemnity paid or payable to the Applicant from any source other than social assistance pursuant to subsection 17(3) of the CVCA.
5The Applicant must provide reliable evidence to support his claims for: expenses actually and reasonably incurred as a result of his injury pursuant to subsection 7(1)(a) of the CVCA.
Hearing
6The Applicant appeared and provided oral testimony. His counsel also appeared, asked questions, and made submissions.
7The Alleged Offender also appeared and provided oral testimony. He also had counsel who appeared, asked questions and made submissions.
8Detective [name], with the [city] Police Service (‘police officer’) appeared as a witness. He was the officer in charge of the investigation.
9In these circumstances and as is the CICB’s normal practice, a shuttle hearing was held on the first day of the hearing, March 5, 2018. The Applicant and Alleged Offender were in separate hearing rooms but able to hear and participate in the proceeding in the other room using telephones. The Panel (and representatives) moved between the hearing rooms to conduct their questioning. On the second day of the hearing, June 18, 2018, the parties agreed that it was not necessary to be in separate rooms. All attended in the one hearing room for the completion of the hearing.
10At the beginning of the hearing, we confirmed the Applicant was aware of subsections 17(1), 17(2) and 17(3) of the CVCA, as noted above in paragraph 4, and that we would consider those parts of the CVCA when deciding the Application. Subsections 17(1) and (2) were read to the Applicant. Subsection 17(3) was discussed with the Applicant, the Alleged Offender and counsel. A civil suit has been filed but is in its early stages.
11A further preliminary matter was raised by counsel for the Alleged Offender. He had filed a motion for dismissal early in the proceedings. He was advised that it would be addressed at the hearing, as is the CICB’s practice, and that the evidence taken at the hearing could be used to make submissions. At the end of the hearing, counsel was invited to address the motion but he said he felt it was moot at that stage and need not be addressed.
Documentary Evidence
12The CICB received the following documents with respect to the claim:
The Application dated January 28, 2015
The Alleged Offender’s response
The information charging the Alleged Offender with assault causing bodily harm dated [date], 2013 and noting that the charge was withdrawn on [date], 2013 when the Alleged Offender entered into a common law peace bond.
A copy of the peace bond.
The police record of the arrest
Two letters from the Applicant’s dentist estimating treatment in the amount of $13,600.00
The ER report from [name] Hospital with an admittance date of [date], 2013.
The triage note from [name] Hospital
A report from the chiropractor, including multiple invoices
A dental report from indicating that there was a balance owing to him of $13,600.00, dated [date], 2016.
A report from the Applicant’s family doctor, dated [date], 2016.
A further report from the chiropractor
A report from the physiotherapist
A brief video of the incident provided by the police witness.
The documentary evidence can be briefly described as follows:
13The police reports disclose that the Applicant bought a house from the Alleged Offender about 6 months prior to the incident which is the subject matter of this claim. He was given 3 keys to the house. He renovated the house and in doing so, the keys became obsolete and he threw them away.
14The Alleged Offender told the police that one of the keys was of significant sentimental value as it had been given to him by his father. The key was attached to a medallion which was a silver dollar dated the year the Alleged Offender was born.
15On [date], 2013, the Alleged Offender attended the residence of the Applicant and knocked on the door. The Applicant opened the door only about 6 inches as he had a dog that he wanted to keep inside the house. The Alleged Offender asked for the medallion. The Applicant said he didn’t have it. An argument ensued involving some swearing. The Applicant asked the Alleged Offender to leave his property. The Alleged Offender remained. The Applicant was about to close the door when the Alleged Offender kicked the door in, causing the door to strike the Applicant in the face. The Alleged Offender said he did not kick the door. The police were called and attended. Both the Applicant and the Alleged Offender were on the scene when the police and an ambulance arrived. The Alleged Offender was arrested for assault and taken to the police station. He was released later in the evening. The Applicant was taken to the hospital in the ambulance. He contacted police afterwards and reported that the injury was more serious than initially thought. On the basis of this information, the investigating officer upgraded the assault charge to a charge of assault causing bodily harm. The investigating officer collected medical reports and retrieved a video of the incident that was recorded by a camera on the Applicant’s premises.
16The matter was later resolved when the charge was withdrawn and the Alleged Offender entered into a peace bond.
17The medical documentation is somewhat confusing. The hospital’s initial triage report of the Applicant’s injuries records that they were minimal. The report indicated the following: “no issue with teeth”;” Pt. presents well, no facial trauma, teeth are intact, no bleeding present, no loose teeth”.
18However, the report of the treating physician indicates that there were “teeth pushed in.” The report also refers to the Applicant having a mild headache and feeling lightheaded. The doctor’s report also notes that the reason the Applicant was admitted to the hospital was due to hypertension. The triage and ambulance reports indicate that the Applicant was admitted to hospital because he had high blood pressure.
19The reports of the chiropractor and physiotherapist do not assist in determining the degree of injury. According to their reports, both had been treating the Applicant for some time. Their reports do not distinguish as to which treatments were related to injuries caused by the incident and which treatments were in respect to prior injuries. And although they had treated the Applicant previously, their reports suggest that he did not have prior injuries. In addition, some of the information in both their reports had been blacked out. The reports were not very helpful
20The dentist’s reports were also somewhat confusing. In his letters of [date], 2013, the dentist reported that the Applicant first came to see him after the incident, on [date], 2013. As the incident occurred on [date], 2013, it is difficult to understand how he could relate the serious nature of injuries to an incident that took place 10 days previously. Further, the report he forwarded dated [date], 2016 is confusing as to what treatment was required for what injury. There is also a notation in the latter report that there is a balance owing to him of $13,600, although that may be intended to be an estimate, which he had reported earlier. The Applicant said he has not had dental treatment since the incident.
21The letter from the Applicant’s family doctor has little information. It does not appear that he treated the Applicant for any of the injuries claimed.
Oral Evidence
22The testimony of the Applicant and the Alleged Offender was similar as to the general nature of the incident. The Applicant testified that late in the afternoon of [date], 2013, the Alleged Offender came to his door and asked for the medallion back. The Applicant said he didn’t have it. There was a verbal altercation. At the time, the Applicant was standing behind the door with the door open only several inches as he didn’t want his dog to get out. The Alleged Offender was being very insistent. The Applicant said the Alleged Offender was swearing and he was concerned because his daughter was in the home, witnessing the incident. The Applicant asked the Alleged Offender to leave. He did not leave. The Applicant was about to close the door when the Alleged Offender kicked the door, knocking the Applicant in the face. The Applicant fell and got back up. His daughter called 911. The police and ambulance arrived. The Alleged Offender was arrested and taken to the police station. The medics checked the Applicant’s blood pressure. They took him to the hospital.
23Counsel for the Alleged Offender attacked the Applicant’s credibility. He questioned the Applicant about the fact that he indicated on his Application to the CICB that the Alleged Offender had been convicted of assault causing bodily harm. He questioned the Applicant about the fact that he, the Applicant, was a police officer and would have known the difference between a conviction for assault causing bodily harm and signing a peace bond. Counsel was suggesting he was misleading the CICB. The Applicant testified that he did not fill out the Application himself and although he signed it, he didn’t pick up on that mistake. He said the Application was filled out by someone at his lawyer’s office. His counsel confirmed that it was filled out by an office clerk. While the mistake seemed to have some explanation, it did call into question the Applicant’s credibility.
24Counsel also challenged the Applicant’s credibility with respect to the injuries claimed in the Application. While the Applicant claimed injuries to his neck, shoulder, back, teeth and chest pain, counsel referred to the triage report that appeared to contradict the suggestion that those injuries occurred. This was somewhat explained by the fact that the treating doctor at the hospital did note some of those injuries. And while the medical reports were not very convincing, it appears likely that he was treated for some of them. Counsel raised a couple of other points with respect to credibility but they were not persuasive.
25The Alleged Offender testified to many of the same facts as had the Applicant. He did insist that he had given the Applicant the medallion and that he asked the Applicant to return it on a number of occasions. The Applicant refuted both those suggestions. The most significant difference in their testimony is as to how the door was opened and whether it hit the Applicant. The Alleged Offender testified that when he saw that the Applicant was going to close the door, he got his foot in the doorway and the door hit his foot and flung the door open towards the Applicant. He denied ever kicking the door. Counsel and CICB members questioned him in some detail about how this occurred. The Alleged Offender insisted that he just did not want the door to be closed so he used his foot to prevent it. He again insisted he didn’t kick the door.
26The police witness brought a copy of the video on the second day of the hearing. The video was brief, lasting only a few minutes. After the evidence of the Alleged Offender was completed, the hearing adjourned to give the CICB members and the parties the opportunity to view the video. The police witness showed the video to the CICB members a couple of times. He then showed it individually to the Applicant and the Alleged Offender and their respective counsel.
27The police witness testified as to the results of the investigation, which are otherwise stated here. He was the officer in charge and was responsible for collecting the medical evidence and the video. He acknowledged that he upgraded the assault charge to assault causing bodily harm on the information given to him by the Applicant after leaving the hospital that night. He also acknowledged that he was not involved in the plea negotiations resulting in the charge being withdrawn and the Alleged Offender signing a peace bond. He had no information as to how that came about. He also said he had no information as to whether the door was damaged. He indicated that had he known that to have been the case, as the Applicant alleges, he would have laid a charge of mischief.
28Counsel was invited to ask any questions arising from viewing the video. Counsel for the Applicant suggested to the Alleged Offender that it was clear he kicked the door. The Alleged Offender denied that that was what happened. He said it all happened in a split second. He denied kicking the door resulting in the door striking the Applicant. Counsel for the Alleged Offender questioned the Applicant who repeated that the door hit him in the face as a result of the kick and he fell down. There was no question that he was the one behind the door.
Analysis and Decision
29For the following reasons the CICB grants the Application. The video shows that the Alleged Offender clearly and deliberately kicked the door. It also shows that the Applicant was behind it, peeking around the door frame. It would appear that such a kick to the door would result in the door being pushed into the Applicant. Counsel for the Alleged Offender argued that a crime of violence is not made out; that the force was not intentional, that it happened in a split second and was a reflexive reaction; that even if he caused the door to hit the Applicant, he was just being careless.
30The video does not bear that out. The Alleged Offender refused to leave the premises when asked. He appeared to be angry and he deliberately kicked the door, knowing that the Applicant was behind it.
31The CICB finds that there was a crime of violence and that the Applicant was the victim. He was in his home with his daughter when the Alleged Offender came to his door using abusive language and asking for something the Applicant did not have. When the Applicant asked the Alleged Offender to leave, he refused. The result was the door hitting the Applicant causing injury. The degree of injury is difficult to assess due to the discrepancies in the medical reports. However, the CICB finds there is sufficient evidence in the reports and through the testimony of the Applicant to establish that there were some physical injuries, as would be expected, and it is clear in the reports that the Applicant was suffering with high blood pressure which was exacerbated by this event. Taking these factors into consideration, the CICB is awarding $5,000.00 to the Applicant for pain and suffering.
32It should be noted that the CICB found that subsections 17(1) and (2) were not factors in making the decision.
33The Applicant has claimed for several thousands of dollars in treatment expenses. These expenses are not set out in any detail. It is clear that the Applicant had prior injuries and was treated for them. It is not clear what amounts he is claiming with respect to the specific injuries arising from this incident. Nor is a clear link established between the treatment said to be required and the specific injuries described as being a result of the altercation. Further, it is clear that the Applicant has at least one form of insurance, if not more. No information has been filed describing the insurance plans and what they covered. For these reasons, the claim for these expenses is denied.
Award
34The CICB orders payment as follows:
Subsection 7(1) (d) Pain and Suffering $ 5,000.00
TOTAL AWARD (AND COSTS) $ 5,000.00
Payment
35THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $5,000.00
DATED at Toronto this 5th day of November, 2018
_____________________________ Janet MacEachen, Member
_____________________________ David Fine, Member
_____________________________ Noeline Paul, Member