(Re) 1607-04106, 2017 ONCICB 140

CRIMINAL INJURIES COMPENSATION CICB

Adjudicator: M. Saleem Akhtar Date: June 05, 2017 Indexed as: (Re) 1607-04106

ORDER

INTRODUCTION

1The Applicant is seeking financial compensation from the Criminal Injuries Compensation CICB (CICB) in accordance with the Compensation for Applicants 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 he claims he sustained as well as incident related expenses and loss of income suffered as a result of the assault committed against him on [date], 2014, in the Province of Ontario. The Offender was convicted of assault cause bodily harm in relation to this matter.

DECISION

2The CICB approves the claim made by the Applicant in relation to the assault committed against him on [date], 2014 by the Offender, as mentioned above, and awards the Applicant the sum of $6,000.00 as compensation for pain and suffering, for the reasons set out below. The CICB also approves $1,500.00 as loss of income accruing due to the assault.

ISSUES

3Pursuant 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 and loss of income, as requested by the Applicant.

HEARING

4The Applicant appeared at the hearing on [date], 2017 and provided sworn oral testimony. His Counsel also attended the hearing.

Applicant’s written submissions regarding the incident

5In his Application before the CICB, the Applicant described the incident under the heading “Details of the Crime” as follows:

Applicant was visiting his friend, [Name] whom he had known for close to one year. The father of [Name's] child, [Offender] came over to [Name's] house while Applicant was there. [The Offender] became agitated upon seeing [the Applicant] and asked him to leave. A moment later, while [the Applicant] was kneeling down on the ground, [the Offender] punched [the Applicant] on the right side of his face and broke his jaw.

Applicant’s Oral Testimony regarding the incident

6In his sworn oral testimony before the CICB on [date], 2017, the Applicant told that he was assaulted by his female friend’s ex-boyfriend, the Offender, while the former was at her place. By seeing the Applicant at his ex-girlfriend’s place, the Offender became “jealous” and “punched” the Applicant and broke his jaw.

7In responding to a question from the Panel if there was an argument or exchange of heated words between the Applicant and the Offender prior to the assault, the Applicant responded “not really.” He added that the incident happened so fast that he “could not anticipate as assault.”

8In replying to a question from the Panel that the Offender had asked the Applicant to leave, but the latter declined to leave and a verbal argument ensued, the Applicant responded that he “could not recall that; there was no argument. [The Offender] did not give time to argue. He just attacked and punched.”

9When the Applicant was asked if he would agree that the incident and the resultant injuries might not have happened if he had left the premises when the Offender advised him to leave, the Applicant responded that “it would have happened anyway because the Offender was full of jealousy and anger.”

10Responding to questions from his Counsel, the Applicant stated that he did not provoke the Offender or the incident. He had known the girl for about one year. She was just a friend and that he had “no sexual relationship with her.” He told the Offender that he did not have to leave as he was not doing anything wrong. It happened quickly within seconds. He had no time to defend himself. He was not expecting the assault. If he knew, he would have left immediately. He had not gone there to get assaulted.

Applicant’s written submissions regarding his injuries

11In his Application, the Applicant described his injuries under the heading “Details of Injuries” as follows:

My jaw was broken and required surgery. It was wired-shut for at least 4 weeks. I am still in pain over a year after the incident and continue to have metal wiring around my jaw bone.

Applicant’s oral testimony regarding his injuries

12In his oral sworn testimony, the Applicant stated that his jaw was broken and that he had to undergo surgery to get it fixed. His wisdom tooth had to be removed. His face became swollen. He was scared and developed trust issues. His anxiety became bad and he had sleep issues. He was also suffering from back pain.

13When the Panel asked if he had anxiety issues prior to the assault, the Applicant stated that his anxiety did not originate from the assault. However, it got aggravated so bad that he was put back on anxiety pills. He has been on anxiety medication to this day.

14When asked by the Panel if he had back pain prior to the assault, the Applicant responded that he had back pain and that it was “unrelated to the assault.”

15In responding to questions from his Counsel, the Applicant stated that “it was a brutal attack, which messed up his whole life.” For quite some time, he “could not eat solid food” and he “used only liquid diet or very soft diet.” His face was swollen and his jaw, gums and teeth were hurting. His teeth and jaw were wired-up. This messed up his Christmas dinner with the family and get-together. His muscles are still tense. It is a kind of muscle spasm. Some pieces of metal are still inside the jaw. A piece of steel peaks out occasionally. It is painful and embarrassing.

Final submissions

16In his final submissions, Counsel highlighted that the Applicant’s jaw was broken and that he had to undergo a surgical procedure to get the repair work done. In the process, his tooth had to be extracted. The pain and the emotional impact from the assault linger on to this day. He requested an extension of 30 days up to May 24, 2017 so that he could gather and submit more relevant documentation, including “Firm offer of employment” to substantiate the Applicant’s potential future and anticipated loss of income. This request was granted. The Counsel pleaded for pain and suffering in the amount of $25,000.00.

Police Report

17The Police Report, on file, corroborates the Applicant’s version of the incident. However, the Report adds that when the Offender became very upset, he requested “[the Applicant] to leave immediately. [The Applicant] declined to leave where a verbal argument then ensued. [The Applicant] then turned around and bent over to play with the dog. In a fit of range, [the Offender] lunged at [the Applicant] and punched him from behind with a closed fist landing on the right jaw of [the Applicant] … [the Applicant] suffered a broken right jaw, which had to be treated at the [Name] Hospital.”

18After due investigation, the Police charged the Offender with assault cause bodily harm contrary to the provisions of section 267(1)(b) of the Criminal Code of Canada RSC 1985, c.C-46 (the “Code”). Later, he was convicted of the same charge.

ANALYSIS AND DECISION

19The 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 Applicant’s injury must have resulted from a “crime of violence” constituting an offence against the Code. In 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

20Section 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.

21Hence, 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 and loss of income, as requested by the Applicant.

Nature of Injuries

22The Applicant sustained physical injuries as well as emotional injuries as already described in paragraphs 11 to 15 and 17 of this Order.

23In support of his injuries claim, the Applicant has provided Treatment and Assessment Reports from [Name] General Hospital, his Family Physician and his Dentist, which corroborate his account of his injuries, as described above. However, the CICB notes that the Applicant had pre-existing and other health issues as well such as anxiety and back pain. The CICB accepts these Reports for the purpose of compensation in this matter.

24The Applicant’s oral testimony was inherently consistent with his written submissions made in his Application. He was straight forward and honest in responding to questions from the CICB. He was not evasive in his responses. His demeanour was that of a reliable and credible person. His testimony was convincing, credible and reliable. Hence, the CICB accepts the Applicant’s account of his physical and emotional/psychological injuries and their resultant impact on him, as described and claimed by him.

Compensation

25In 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),

261974 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.

27Section 5 of the Act states:

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

28After reviewing the evidence in its totality, both oral and documentary, the CICB finds the Applicant’s testimony credible and accepts his testimony both in terms of the incident and the injuries as described above.

29Based 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 as well as in his oral testimony.

30In assessing compensation for pain and suffering, the CICB has considered:

a) The nature of the assault resulting in physical injuries to the Applicant;

b) The emotional / psychological impact of the assault;

c) The ongoing impact on the Applicant’s overall health, relationships and productivity.

31Section 17(1) of the Act obligates the CICB to consider all of the relevant circumstances of the case and to consider the principle of proportionality. The relevant circumstances include whether there was any conduct by the Applicant that contributed to his injury as well as the severity of the injury suffered. The CICB must decide whether to grant compensation, deny compensation or allow a reduced award.

32After reviewing the evidence in its totality, the CICB is convinced that section 17 related issues are not established in this matter. There is no evidence to suggest that the Applicant initiated the altercation or provoked in anyway. He fully cooperated with Police at all stages of the matter. Hence, there would be no negative impact in terms of the outcome of the matter in relation to compensation.

33It 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 CICB) 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 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.

34After 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 $6,000.00 as compensation for pain and suffering.

Expenses

35The CICB has considered the Applicant’s claim for an unspecified amount in respect to prescription drugs costs. The CICB generally requires original receipts and/or other supporting documentation for any expenses that are claimed, both to verify the amount claimed and to confirm that such costs were not covered by other sources, such as private insurance or public funds. In the absence of such evidence, and having found no compelling reason to deviate from its usual practice in this instance, the CICB denies this part of the claim.

Loss of income

36The CICB has considered the Applicant’s claim for an unspecified amount as income loss.

37At the hearing, the Applicant as well as his counsel contended that the former had a “firm job offer” to start work the following Monday, at a new establishment, but he could not do so due to the injuries caused by the assault. Hence, the CICB should consider a reasonable amount as “anticipated income loss.” At the request of the Applicant and his Counsel, the CICB granted 30 days extension to afford them an opportunity to furnish relevant supporting documentation in support of their claim. The documentation that they have presented to the CICB does not indicate any “job offer.” On the contrary, in response to the Applicant’s counsel’s query regarding the Applicant’s status with the company including any job offer, there is a letter from the Plant Administrator to the Applicant’s Counsel stating

Sorry my reply is delayed. I had contacted my head office to see if they had anything in writing regarding [the Applicant]. They unfortunately did not and unfortunately the individual he would have been interviewing with at the time is no longer there.

This letter clearly confirms that there was no “firm job offer” as claimed by the Applicant. Hence, there was no loss of income because there was no income in the first place. Accordingly, based on the evidence and analysis, this part of the claim “anticipated income loss” is denied.

38The Applicant has submitted his Tax Returns for the years 2013 and 2014 and T- 4s for the year 2015. The incident happened on [date], 2014. A comparative study of the total income for the year 2014 (the year of the incident) and 2015 (the year after the incident) reveals that the Applicant made more income in 2015 ($15,782.00) than 2014 ($12,249.00). Therefore, there seems to be no loss of income due to the assault. Nevertheless, the CICB understands that it would not have been possible for the Applicant to go back to work for some amount of time after having sustained injuries such as a broken jaw requiring surgery and subsequent healing period. In this context, the CICB relies on and accepts the Applicant’s Physician’s Report indicating that the Applicant was unable to work due to the injuries for six weeks from [date], 2014 to [date], 2015. It is the CICB’s practice to reimburse income loss to a maximum of $1,000.00 per month or $250.00 per week and having considered the particular circumstances of this case, the CICB finds no compelling reason to deviate from that practice. Accordingly, the CICB now awards $1,500.00 for income loss (6 weeks x $250.00 per week = $1,500.00).

39It is the CICB’s practice to contribute up to a maximum of $400.00 towards legal fees incurred to assist an applicant with his application where it is satisfied that legal representation was reasonably necessary in the circumstances of the case. We find no compelling reason to deviate from that practice under the circumstances. The CICB awards $400.00 in respect of this expense and orders that it be paid directly to the Applicant’s Counsel.

AWARD

40The CICB now orders payment as follows:

Section 7 (1) (b) Loss of Income $1,500.00

Section 7 (1) (d) Pain and Suffering $6,000.00

Section 22 costs (contribution towards legal fee) $ 400.00

TOTAL CURRENT AWARD AND COSTS: $7,900.00

41The 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

42THE CICB ORDERS that the following sums be paid forthwith to:

D. Robert Findlay Law Office Professional Corp. in Trust for [the applicant] $7,500.00

D. Robert Findlay Law Office Professional Corp. $ 400.00