(Re) 1511-01340, 2017 CanLII 147374

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Evelyn J. Baxter

Date: November 23, 2017

Indexed as: (Re) 1511-01340

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 (the “Act”). The Applicant is seeking compensation for expenses, loss of income, pain and suffering as a result of a physical assault that occurred on [date], 2015 where he claimed he sustained physical injuries. The incident was reported to the Police and resulted in the Offender being charged and convicted of aggravated assault.

DECISION

2The CICB approves the claim for compensation and awards the Applicant the sum of $10,269.61 for the reasons set out below.

ISSUES

3A conviction may be taken as conclusive evidence that an offence has been committed pursuant to section 11 of the Act. Given that there was a conviction in this case, the Applicant is required to prove, on a balance of probabilities, that his injuries are the result of the crime pursuant to subsection 5(a) of the Act.

HEARING

4The hearing was conducted in writing on the basis of the materials contained in the Applicant’s file.

Documentary Evidence

5The CICB received the following documents from the Applicant with respect to the claim: Police Report, Hospital Records from [Name] Hospital, a Victim Impact Statement, Court documents, copies of expense claims or receipts, and other documents.

6The Applicant was in a bar in [City] around “closing time” on [date], 2015 when he accompanied a bar employee outside to check on two people, one of whom was the Offender, who had been asked to leave the bar about 2 hours earlier for aggressive behaviour. The bar manager had been informed the Offender and his friend were hanging about outside the bar.

7The Applicant and the bar employee went outside to ensure all was alright. The Offender and his friend were seen in the parking lot and asked to leave. The Offender became aggressive and he began to punch and kick the Applicant.

8The Police Report indicated the Offender’s friend also took part in assaulting the Applicant. At some point the Applicant fell to the ground unconscious, and the Offender and his friend continued to assault him. The Applicant was kicked in the face and his ankle was stomped on causing it to break.

9The Applicant was taken by ambulance to Hospital where his wounds were treated. He required 2 surgeries on his ankle to correct the fracture. Metal screws were inserted to stabilize the injury.

10The Offender turned himself into Police on or about [date], 2015 and he was charged with aggravated assault as a result of the incident. He was later convicted of the same offense.

11The Applicant reported he suffered black eyes, a bloody nose, welts on his chin, boot marks on his head, scraped knees and a broken ankle. No emergency room or ambulance reports were provided to determine the Applicant’s immediate injuries.

12The Applicant reported he was a cook at the time of the assault and with the broken ankle, he missed 8 weeks of work, and then could not walk or be on his feet for long once he returned to his job. The pain in his ankle was a constant reminder of the assault and how difficult his job then became.

13The Applicant reported he received Employment Insurance Sick Benefits (EI) in the amount of $2,120.00, but lost $3,600.00 income as a result of the assault. No Employer Report or EI report was provided, even though the CICB requested these reports be submitted prior to the hearing.

14The Applicant also provided receipts totaling $95.61 for prescription medication and an invoice for crutches from the hospital in the amount of $174.00, which he noted he did not pay.

15With respect to psychological injuries suffered, the Applicant reported in his Victim Impact Statement and his Application that he was afraid to go to the pub alone, he missed playing outdoors with his granddaughter while he recuperated, and the pain in his ankle and leg was frustrating given how difficult it was to be at work on his feet for long periods of time.

16The CICB noted in the Hospital Record that the Applicant was non-compliant with his recovery and the instructions to avoid weight bearing for at least 8 weeks following the first surgery. It appeared from the Records the fracture was not allowed to set properly and the Applicant was facing additional intervention to repair the original injury and the damage he caused by not following the doctor’s orders.

ANALYSIS AND DECISION

17Based on the evidence in this case, the CICB is satisfied that there was a conviction in relation to this incident and therefore is conclusive evidence that an aggravated assault occurred. The CICB is further satisfied, on a balance of probabilities, with the evidence from the Application, the Police documentation, and the Hospital Records that the physical injuries described above were caused by the assault that occurred on [date], 2015. Consequently, the CICB is satisfied the Applicant is a victim of a crime of violence within the meaning of subsection 5(a) of the Act.

18As the Applicant has proven his case on a balance of probabilities, the CICB grants the application and awards compensation pursuant to the Act. The CICB has taken into account the seriousness of the injuries to the Applicant in awarding compensation for pain and suffering.

19The CICB considered the Applicant’s claim in respect to medication costs and crutches, for which receipts and invoice were provided. The CICB finds such costs to be both reasonable and within the context of the Act and will, therefore, award $269.61 for such costs. With respect to the costs for medical supplies such as gauze and dressing, the CICB does not generally compensate for expenses related to personal items. Having found no compelling reasons to deviate from its usual practice in this instance, the CICB declines to award compensation for the Applicant’s claims in respect to the gauze and dressings costs.

20With respect to the Applicant’s claim for income loss, the CICB notes that it generally requires supporting documentation (i.e. employer’s report, pay stubs or Income Tax records and/or medical confirmation of disability) in order to verify an applicant’s employment status and average net earnings at the time of the incident, and to determine whether any income-replacements benefits were received during the period being claimed, and to confirm the period of disability. In the absence of proof of employment, income and any benefits received, and having found no compelling reasons to deviate from its usual practice in this instance, the CICB finds that the Applicant has failed to establish his claim for income loss and the claim in that regard is hereby denied.

AWARD

21The CICB orders payment as follows:

Subsection 7(1)(a) Expenses $ 269.61

Subsection 7(1)(d) Pain and Suffering $10,000.00

TOTAL AWARD (AND COSTS) $10,269.61

PAYMENT

22THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $10,095.61

[Name] Hospital $ 174.00

23The 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.