(Re) 1804-01546, 2019 ONCICB 95

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Keith Forde

Date: June 14, 2019

Indexed as: (Re) 1804-01546

DECISION

Introduction

1The Applicant applied to the Criminal Injuries Compensation Board (CICB) seeking compensation for injuries resulting from a crime of violence. The Applicant is seeking the following forms of compensation for pain and suffering and ambulance 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 in person and provided affirmed oral testimony and submissions.

4A Croatian interpreter was present to interpret for the Applicant.

Evidence

5The Applicant testified that he has no recollection of what transpired when he was assaulted by the Alleged Offender (AO); however, the Applicant did remember attending his friend’s apartment around 9:00 pm and consuming beers with his friend, his friend’s wife and the AO most of the night.

6The Applicant admitted to drinking about ten beers and being in a drunken stupor. Although the Applicant testified to having no recollection of who assaulted him, he said that he was told by a friend (the Witness) that someone struck him in the head and knocked him out. He said that he was later located by a neighbour in the lobby of his building near the restaurant owned by the Witness. The Applicant said he was covered in blood with a cut to his right arm and was unaware how he got to his building from his friend’s apartment.

7The Applicant alleged in his application that a month after incident, he was seated in the patio of the restaurant with the Witness and his wife when the AO drove by and threatened the Witness and his wife not to say anything to the police.

8However, during his testimony, the Applicant was adamant that he was never threatened by the AO in response. I indicated to the Applicant that this is contrary to his statement in his Application; nevertheless, he continued to deny that he was ever threatened.

9The Applicant testified that he was in a coma for the first three days he was admitted to the hospital and could not remember anything for those three days and could not have told the hospital he fell.

10The Applicant further testified that when he was in the hospital, the AO visited him almost every other day.

11The Applicant testified that two weeks after being discharged from the hospital he was told by the witness that he was assaulted by the AO. When I asked the Applicant why it took a year to report the alleged assault to the police; the Applicant said he was not sure why he waited a year and that the hospital should have assumed that he was beaten up.

12The Applicant further testified that to the best of his knowledge he was assaulted in his friend’s apartment. When the Applicant was asked why he did not get a statement from his friend or his wife who he was drinking with, he said that they are no longer friends.

13In response to a question from his counsel, the Applicant surmised that the AO came to visit him every other day so that it would not look like he was the one who assaulted him.

14Counsel for the Applicant noted that hospital reports indicate the Applicant had previous falls from drinking and asked the Applicant how he knows whether the same thing happened this time. The Applicant said that those previous injuries were from falling off a bicycle; however, this time he was beaten up.

15Counsel also put to the Applicant that the ambulance report noted that the Applicant was found slumped in the stairwell with a six pack of smashed beers and asked why that would be. The Applicant responded by saying that the AO and his friend whose apartment he was drinking set him up. The Applicant admitted this time that he was unaware where the alleged assault took place and did not know where the ambulance attendants found him. When the Applicant was asked why he believes he was set up; he responded that he did not know.

16The Applicant said that he was found in the lobby of the building and that no one moved him and to the best of his knowledge he believes the assault took place in the apartment.

Witness Testimony

17The Witness attended the hearing on the Applicant’s behalf and gave affirmed testimony. The Witness testified that he has known the Applicant for about 10 years and is the owner of the restaurant in the same building where the Applicant lives.

18The Witness said that the AO came to the patio and threatened the Applicant, the owner of the building and himself. The AO told them not to do anything or else he would do something to them. The owner of the building reported the alleged threat to the local police who told her that the utterance by the AO did not reach the threshold for consideration as a threat.

19The Witness informed the CICB that the Applicant was found in the stairwell and that one of the parties who was drinking with the Applicant came to his restaurant the same morning but did not mention anything about any assault. The Witness also said that the Applicant used to fall from his bicycle but never was hurt that badly.

20Much of the testimony given by the Witness was hearsay; he had no direct evidence to offer to the hearing, everything he spoke about was told to him by someone else or speculation on his part.

Injuries

21The CICB was in receipt of a medical report from the local hospital. The report noted that the Applicant presented with subarachnoid hemorrhage; a right temporal bone fracture, a comminuted right elbow fracture; an un-displaced right distal clavicle fracture; two rib fractures; spinal fractures; and a sinus fracture. There also was a right non-displaced temporal skull fracture and a corresponding scalp hematoma. The medical report also noted that there were multiple old right-sided rib fractures identified which appears stable. The Applicant was hospitalized from April 22, 2017 until May 8, 2017. Upon discharge, the Applicant followed up with his family physician. A nurse practitioner who saw the Applicant after discharged from the hospital, noted he never told her that he was assaulted until July 2018.

22The Applicant did have a follow up surgery to correct the elbow fracture.

23The CICB was also in receipt of a physiotherapy report which noted the Applicant’s right arm and elbow were treated.

24The Applicant testified that after the alleged assault, he suffered from headaches and migraines, his right arms still hurts, he has a permanent scar on his right forearm as well as scars from the injuries to the top of his head. Emotionally, he said that he still has a hard time sleeping, he is afraid of the AO, suffers from nightmares and bad dreams of the AO, has flashbacks of seeing the AO, and is having a hard time going outside.

Analysis

Crime of Violence

25There was no conviction in respect of the incident.

26The fact that there has not been a conviction is not fatal to the Applicant’s claim. section 16(1) of the CVCA provides that compensation may be awarded whether or not a person has been prosecuted or convicted of the offence that gives rise to the injury or death.

27The issue is clearly whether the Applicant has established, on a balance of probabilities, that he was injured as a result of a crime of violence as prescribed by section 5 (a) of the CVCA.

28The Applicant has been unable to provide the CICB with enough evidence to establish that he was assaulted by the AO or anyone else. In conjunction with the Applicant’s testimony and medical reports, the Applicant likely sustained his physical injuries because of a fall down a flight of stairs while he was in a drunken stupor. There is no reliable evidence, other than the Applicant’s own speculation (even though he does not remember much of the events), regarding what occurred.

29In the Applicant’s testimony, he acknowledged that he does not know what happened and how he received his injuries. He said that two weeks after being discharged from the hospital, the Witness told him that the AO assaulted him. The Witness himself gave affirmed testimony and could only offer hearsay testimony and speculative assertions as to what might have happened to the Applicant. Further, the Applicant denied that the AO made threats while on the patio at the Witness’ restaurant, contrary to the Witness’ testimony regarding that incident.

30The Applicant said that he was at his friend’s home consuming alcoholic beverages to the point of high intoxication. He could not remember any acrimonious conversation or interaction with the AO or anyone; in fact, the Applicant could not remember even going to his home which he said was about ten minutes away from where he was drinking.

31I had the benefit of the ambulance report which noted the Applicant was located slumped in the stairwell of his building with a six pack of smashed beers, appearing as if he possibly fell while going up or coming down the stairs. The ambulance attendants also noted that they detected a strong odour of alcohol from the Applicant’s breath, limited and slurred speech with a small laceration to the top of his head.

32Having considered all the evidence presented at the hearing and the submissions by the Applicant’s counsel, I find that the Applicant has failed to provide sufficient reliable evidence to prove that he was the victim with the meaning of section 5 (a) of the CVCA and the claim is thereby denied.

33Nevertheless, pursuant to section 22 of the CVCA, the CICB orders payment in the amount of $38.90 to Anna Columbo - Legal Assistance of Windsor for disbursements.

Award

34The CICB orders compensation as follows:

Section 22 Costs

$38.90

Total Award (and Costs)

$38.90

Total Current Award

$38.90

Payment

37The CICB orders the following be paid immediately to:

Anna Columbo - Legal Assistance of Windsor

$38.90