CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: M. Saleem Akhtar
Indexed as: (Re) 1608-04544
ORDER
Introduction
1This is an Application by the Applicant seeking compensation for physical and emotional injuries arising from the commission of a crime of violence in accordance with the Compensation for Victims of Crime Act, RSO 1990, c. C.24, as amended (the “Act”). The assault was committed against the Applicant by the Offender on [date], 2015 in the province of Ontario.
Decision
2The CICB approves the claim made by the Applicant in relation to an assault committed against him on [date], 2015 by the Offender mentioned above and awards him the sum of $3,000.00 as compensation for pain and suffering, for the reasons set out below. The CICB also approves travel to treatment costs in the amount of $319.20 and costs to obtain Physician’s Report in the amount of $32.35.
Evidence
Victim’s written submissions regarding the incident
3In his Application, the Applicant described the incident under the heading “Details of the Crime” as follows:
On [date], 2015, I was working as a dayshift as a uniformed police officer in a marked police vehicle…At about 2:50 p.m. a radio call for a person with a knife came into 911. Initial info was that a male [Offender] attacked another male with a knife…the Offender tried to stab the male and was last seen leaving…myself and my partner were assigned to search for the Offender. Shortly, thereafter, we located the Offender…I directed the Offender to stop to which he responded, “You will have to shoot me.” He continued to ignore me…I did not know where the knife was and I observed what looked like a knife sheath attached to his belt…I decided to…try and restrain him from behind. I wrapped his arms from behind in a bear hug, and he immediately flung his head back and struck my right eye. This stunned me, but, I was able to get him to the ground. After a lengthy struggle resulting in me injuring my hand and recovering a 10-inch serrated saw, he was arrested and charged.
Applicant’s written submissions regarding his injuries
4The Applicant described his injuries under the heading “Details of Injuries” as follows:
(…) I was head-butted on my right eye area. I was momentarily stunned…I re-injured my right hand, which is a recurring injury from years ago. The area around my right eye immediately began to swell and I had extreme pulsating headache pain. My right hand also immediately swelled up and caused my hand to feel numb. Shortly after, I attended [Name] Hospital and was diagnosed with a bruised hand (x-ray was negative) and a concussion (no CT scan). I was driven home due to my concussion and inability to drive. I couldn’t sleep that night…the next morning, my right eye was almost swollen shut and I had a purple / black ring around my eye. For the next two months, I experienced non-stop sharp throbbing headaches. I was unable to do any household chores because of the headache and extreme fatigue. I was unable to walk up more than 1 flight of stairs because of dizziness. I was unable to play with or even pick up my kids because if I bent over too much, it caused me a sharp pain in my head.
Police Report
5The Police Report, on file, corroborates the Applicant’s version of the incident. The Report adds that “one of the officers (Applicant) received a head-butt to his face causing his eye to swell and turn into a black eye.”
6After due investigation, Police charged the Offender with assault peace officer with intent to resist arrest in relation to the Applicant contrary to the provisions of section 270 of the Criminal Code of Canada RSC 1985, c.C-46. Later, the Offender was convicted of the same charge.
Issues
7Pursuant to subsection 5 (a) of the Act, the CICB must determine on a balance of probabilities,
a) Whether a crime of violence occurred against the Applicant that caused him injuries; and if so;
b) The nature and extent of the injuries sustained;
c) Whether compensation should be awarded and if so, determine the amount;
d) Consider incident-related expenses, as requested by the Applicant.
Analysis and Decision
8The CICB must determine on a balance of probabilities if the applicant is a victim of violent crime under subsection 5(a) of the Act. This subsection provides that the victim’s injury must have resulted from a “crime of violence” constituting an offence against the Code.
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.
Crime of Violence
10Section 11 of the Act provides that proof of conviction shall serve as conclusive evidence that the offence has been committed. Therefore, in light of section 11 of the Act, there is no question that the applicant was a victim of a crime of violence involving the Offender as proven through the conviction described above.
11Hence, the remaining issues to be decided by the CICB in this matter are as follows:
a) The nature and extent of the physical and emotional/psychological injuries sustained by the Applicant as a result of the foregoing assault, and
b) Having regard to the relevant circumstances, whether compensation should be awarded and, if so, determine the amount.
c) Consider incident-related expenses, as requested by the Applicant.
Nature of Injuries
12The Applicant has claimed that his right hand got bruised and became swollen shut and a black eye. His hand injury was an agitated reoccurring injury from years ago. He experienced a concussion. He suffered from non-stop headaches and disturbed sleep for months after the incident. He had a short- term memory loss and faced extreme fatigue and dizziness.
13In support of his injuries claim, the Applicant has provided assessment and treatment reports from [Name] Hospital, a Neurologist and photos of his injuries. The Police Report notes that the Applicant’s injury swelled and turned into a “black eye.” These Reports corroborate the Applicant’s account of his injuries, as described above. The CICB accepts these Reports for the purpose of compensation in this matter.
14However, the CICB notes that the Applicant’s Neurologist mentions of (a prior history of occasional headache triggered by sleep deprivation, ingestion of certain types of alcohol (migraine tendency) and a family history of migraine. A personal or a family history of migraine is a risk factor to develop post-concussion headache. The Report adds that there is no future treatment plan specified and no referrals made because the Applicant had “recovered when assessed [date], 2015.”
Compensation
15In 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 CICB, in accordance with natural justice. Sheehan and Criminal Injuries Compensation Board (1975), 1974 439 (ON CA), 5 O.R. (2d) 781. As such, not all injuries warrant compensation. As was noted by the Divisional Court in Pitters v. Ontario (Criminal Injuries Compensation Board), [1996] O.J. No. 4339 (Div. Ct):
The nature of the dispositive authority conferred upon the Board by the Act evidences a legislative intention to accord to the Board a substantial measure of discretion. Under section 5 of the Act, the Board "... may make an order that it, in its discretion exercised in accordance with this Act, considers proper." The breadth of the statutory discretion is underscored by the use of the permissive "may" and "in its discretion". The only substantive qualifier on the exercise of discretion by the Board is that it must be "in accordance with this Act". No enumerative list of factors informs the exercise by the Board of its discretion.
The Board, on application therefor, may make an order that it, in its discretion exercised in accordance with this Act, considers proper for the payment of compensation to,
(d) The victim
17Based upon a careful review of the documentation, on file, the CICB finds the Applicant not only a victim of a crime of violence within the meaning of and pursuant to subsection 5(a) of the Act but also accepts that he sustained both physical and emotional injuries, as described and claimed by him in his Application.
18In assessing compensation for pain and suffering, the CICB has considered:
a) The nature of the unprovoked assault and the extent of the physical injuries sustained;
b) The emotional / psychological impact of the assault;
c) The CICB has also taken into account that the Applicant was assaulted causing him injuries while he was on a line of duty as a uniformed police officer.
d) The ongoing impact on the Applicant’s overall health, relationships and productivity.
19It 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 a victim for compensation whole or to provide full indemnity to a victim. Awards are not paid by the wrongdoer as would be the case if a victim 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.
20After 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, the CICB awards the Applicant $3,000.00 as compensation for pain and suffering.
Expenses
21The CICB has considered the Applicant’s claim in the amount of $319.20 in respect to travel to treatment costs. The CICB finds such costs to be both reasonable and within the context of the Act. Hence, the CICB awards travel to treatment costs in the amount of $319.20 calculated at the CICB’s standard rate of 40¢ per kilometre (total 798 kilometres @ 40¢ per kilometre).
22The CICB has considered the Applicant’s claim in the amount of $32.35 in respect to procuring Physician’s Report. The CICB finds such costs to be both reasonable and within the context of the Act. Hence, pursuant to section 22 of the Act, the CICB orders payment in the amount of $32.35 to the Applicant.
AWARD
23The CICB now orders payment as follows:
Section 7 (1) (a) travel to treatment costs $ 319.20
Section 7 (1) (d) Pain and Suffering $ 3,000.00
Section 22 Costs (physician’s report) $ 32.35
TOTAL CURRENT AWARD: $ 3,351.55
24The CICB recognizes that no amount of money can adequately compensate victims 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 $3,351.55
DATED at Toronto this 15th day of May, 2017
M. Saleem Akhtar, Member