(Re) 1706-02065, 2019 ONCICB 58

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Keith Forde

Date: April 2, 2019

Indexed as: (Re) 1706-02065

DECISION

Introduction

1The Applicant applied to the Criminal Injuries Compensation Board (CICB) seeking compensation for an injury resulting from a crime of violence. The Applicant is seeking the following forms of compensation: pain and suffering, loss of income/wages, medical and treatment expenses.

Decision

2In accordance with the Compensation for Victims of Crime Act, RSO 1990, c.C24, as amended (CVCA), the CICB denies the Application. The reasons for this Decision follow below.

Hearing

3The Applicant appeared by teleconference and provided oral testimony and submissions.

Evidence

4The Applicant testified that on the day of the incident, she was at work at a local 24 hour donut establishment. The Applicant was working in the back of the establishment in the kitchen as a baker; there were three other employees working in different areas of the establishment performing different functions.

5Around 3:15 a.m. while the Applicant was in the back kitchen baking she heard the cashier shouting: “he has a gun, he has a gun.” The Applicant said that she immediately ran to the front of the store; however when she arrived at the front, the Offender had already left the store and as it was dark outside, she was unable to see anyone.

6The Applicant was asked to clarify what she saw when she arrived at the front of the store and what she was told. The Applicant said that she did not see the Offender or the alleged gun the Offender was carrying. The Applicant said that the cashier told her that the Offender approached her and ask her to give him all the money in the till, the cashier ignored the Offender and then he repeated his request again, it was at this time the cashier saw a gun on the Offender’s side and yelled, “he’s got a gun, he’s got a gun.” After hearing the cashier’s screams, the Offender “bolted” out of the store.

7The Applicant said that she immediately called the manager of the store while one of the other employees called 911.

8In the Applicant’s Primary Information to the CICB, she noted that after she heard the cashier shouting about the gun, she screamed for the male employee, went to the front of the store, made sure the door was locked and proceeded to the rear of the store with the other employees.

9The local police attended the scene and took a statement from the cashier that was robbed; however, the police report did not name the Applicant as being on the scene or as a victim. The police did not obtain a witness statement from the Applicant. The Applicant testified that she was at work and had spoken to the police at the scene the day in question giving them information. When the local police was asked if the Applicant was on scene, the police said she could have been in the kitchen and was not directly involved in the incident.

10After the incident, all employees, including the Applicant returned to their functions. The Applicant testified that she left work an hour early as she was not feeling well.

11The police investigation led to the arrest of the Offender who was charged with robbery, use of a firearm and disguise withy intent. The Offender was convicted and was sentenced to 30 months in federal jail and a 10 year weapons prohibition.

Injuries

12After the incident, the Applicant returned to work leaving an hour before the completion of her shift; however, the Applicant returned to work the next day and worked her regular shifts continuously for the three months that followed the incident. The Applicant testified that she is terrified to leave her house and has been off work since.

13The Applicant noted she suffers from the following emotional symptoms: fear, anxiety, sleepless nights with nightmares of robbery, which continued to get worse, she drove to work crying, jumped at every sound and was hypersensitive. She says she was very agitated, couldn't stop thinking of the incident and was prescribed anxiety medication. The Applicant said she was diagnosed with PTSD, has trust issues because of past abuse, needs friends to take her places and can't go out by herself. She says her relationship is suffering, she cannot work, and her confidence and security has been ripped from her. She is depressed and also suffers from suicidal ideation.

14The CICB was in receipt of medical/psychiatric report from the local hospital which noted the Applicant presented in the emergency department in March of 2017, approximately three months after the incident. The Applicant had been previously diagnosed with Bi-Polar Disorder (BPD), as well as Post Traumatic Stress Disorder (PTSD) by a psychiatrist at the said hospital.

15The report noted that the Applicant’s had been seeing a psychiatrist at the hospital for mental health issues since 2012. The psychiatrist has since retired and the Applicant was pre-registered to see another psychiatrist. Her first appointment was set for April 2017. The Applicant has been worried and dwelling on negative things; she has a history suggestive of catastrophizing and magnification, had multiple traumas growing up and a history of panic attacks. Her diagnosis was: GAD, Bipolar Disorder. She is currently in a depressed state and suffers from panic attacks.

16The report noted that since the Applicant was told in February 2017 that her psychiatrist has retired, she has not been functioning well. Noteworthy, in the lengthy medical report from the local hospital, where the Applicant attended on […], after leaving work, she did not mention anything about the robbery or the impact the robbery has had on her day to day functioning.

17The CICB was in receipt of a therapy report from a psychologist who noted that the Applicant was in the back of the donut establishment working as a baker when the attempted armed robbery occurred. The Applicant attended 8 individual counselling sessions.

18The CICB was in receipt of a therapy report from a family counsellor who noted the Applicant suffers from the following symptoms: anxiety; wasn't sleeping and would cry on the way to work; very fearful; could no longer cope with PTSD and experienced suicidal ideation; had panic attacks several times a day; racing thoughts; startled reactions when she heard loud noises; lack of appetite and weight loss; difficulty completing household chores; did not feel safe in community or to go to grocery store. She is on medical leave and has not returned. She has bipolar disorder and was diagnosed 4.5 years ago. She is a survivor of childhood sexual abuse from ages 9 to 14.

Analysis

19The Applicant is required to prove, on a balance of probabilities, not only that she was a victim of a crime of violence but also that her emotional injuries resulted from the crime.

20The CICB accepts that there was a robbery at the Applicant’s work place at the time the Applicant was working in the back of the kitchen away from the cashier area. However, the CICB finds that the robbery was against another victim (the cashier) and not the Applicant.

21On the Applicant’s own testimony, she did not see the Offender, did not heard the Offender asking the cashier for the money in the till and only heard the cashier shout out, “He has a gun, he has a gun.” When she made her way to the front of the store, the Offender had left. She did not actually witness the robbery.

22The police attended the scene of the robbery immediately after it was reported and at no time did the Applicant complain that she was also a victim. In fact, the police did not even interview her at the scene and subsequently noted that she was too far removed from the area where the robbery occurred to be directly involved.

23Also, the Applicant continued working on the day of the incident in December 2016 and the three months that followed. It was not until March 22, 2017 that she claimed to be terrified to leave her house.

24Further, the medical and psychiatric reports suggest that the Applicant was suffering from emotional issues which pre-date the incident. In fact, she had been seeing a psychiatrist since 2012 as well as a counsellor who both reported that the Applicant had multiple traumas as a child and in the past. Therefore the evidence suggests that while the Applicant may be suffering from emotion injuries, they are not as a result of a crime.

25While the CICB expresses sympathy for the Applicant with the multiple problems facing her at the present time, the CICB cannot find the Applicant to be a victim of a crime of violence within the meaning of section 5 of the Act. Accordingly, the claim is denied.

26The Applicant was awarded a Section 14 for $1,800.00 effective August 3, 2017, to be used within 18 months. The Applicant informed the CICB at her hearing that she has not used any of the Section 14 money allotted to her. Given the passage of time, that section 14 award is no longer available to her as the 18 months have passed.