(Re) 1612-00871, 2017 ONCICB 168

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: M. Saleem Akhtar

Date: July 04, 2017

Indexed as: (Re) 1612-00871

ORDER

INTRODUCTION

1This is an Application by the Applicant seeking financial compensation from the Criminal Injuries Compensation Board (CICB) in accordance with the Compensation for Victims of Crime Act, RSO 1990, c. C.24, as amended (the “Act”). The Applicant is seeking compensation for pain and suffering accruing for injuries sustained as a result of the assault committed against her on [date], 2015, in the Province of Ontario. The Offender was convicted of assault cause bodily harm and assault, in relation to the Applicant.

DECISION

2The CICB approves the claim made by the Applicant in relation to the assault committed against her on [date], 2015 by the Offender and awards the Applicant the sum of $6,000.00 as compensation for pain and suffering, for the reasons set out below.

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 her 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 loss of income, as requested by the Applicant.

Written submissions regarding the incident

4In her Application before the CICB, the Applicant described the incident under the heading “Details of the Crime” as follows:

[The Offender] and his girlfriend came to our house looking for my sister. [The Offender’s] girlfriend was saying that she wasn’t going to leave until she fought my sister. She then swung her fist at my sister and I pushed the girlfriend out of the way before she could hit my sister. After I pushed his girlfriend, [the Offender] grabbed me and started to fight me by punching me. He then started to fight my mother as well. I tried to pull [the Offender] off my mother from behind. After that…I saw him push my mother to the ground and he ran towards me…he swung at the left side of my face on my forehead with an object that cut my face open. I then blacked out and when I woke up, I couldn’t see clearly out of my left eye due to the amount of blood pouring down my face. Paramedics came and had to wrap my head twice to stop bleeding and took me to the hospital to get stitches.”

Written submissions regarding injuries

5In her Application, under the heading “Details of Injuries”, the Applicant described her injuries as follows:

I had to get 5 stitches on the outside of my forehead and two inside of my forehead because the wound was so deep. So in total I got 7 stitches and have a permanent scar on the left side of my forehead. I had headaches and pain in my forehead for weeks and sometimes the cut still hurts from time to time. My face was swollen for 5 days and due to the swelling my left eye was half shut. When the weather get hot and I start to sweat it burns my scar and it starts to burn and get irritated if I wipe my face too much. Emotionally, for the first month after this incident I had trouble sleeping at night because I would cry because I couldn’t believe all this had happened by someone who used to come to our house and date my sister. I didn’t know if they were going to come back because we had him arrested and retaliate so this scared me as well. My mother had to call my employer and explain the reason why I missed a week of work. I was afraid that they would fire me because of it. Every time, I look in the mirror, I am reminded of that terrible night because of the scar…and when people ask me about it, I start to get nervous and I start shaking. The children I work with are constantly trying to run their fingers over it and ask all the time why I have because it wasn’t there before. I am afraid to walk anywhere by myself due to the fact that his family and friends live in the same area that we do and have tried verbally harassing us before…this incident has caused me to have really bad anxiety. I get nervous when I hear loud noises…my anxiety causes my heart to start racing randomly…he was two inches away from piercing my skull and possibly getting brain damage, this information hurts and haunts me to this day. I have nightmares about him harming me or other members of my family. When I sit in my back yard I look around to see if he’s on the basketball court because he comes there to play even though he is banned from the area. We had to call police and tell them to speak to his mother because she knows he’s banned from the area and still allows him to come around.

Police Report

6The Police Report, on file, corroborates Applicant’s version of the incident. The Offender was convicted of assault cause bodily harm and assault contrary to the provisions of sections 267(b) and 266 respectively of the Criminal Code of Canada RSC 1985, c.C-46 (the “Code”).

ANALYSIS AND DECISION

7The 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.

8In 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

9Section 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.

10Hence, the remaining issues to be decided by the CICB in this matter are as follows:

a) The nature and extent of the 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 loss of income claim, as requested by the Applicant;

Nature of Injuries

11The Applicant sustained physical injuries, as described above.

12In support of the Applicant’s injuries claim, she has submitted Treatment and Assessment Reports from [Name] Hospital and her Family Physician. These Reports corroborate Applicant’s claim of her physical injuries resulting from the assault. The CICB accepts these Reports for the purpose of compensation in this matter.

13The Applicant did not identify/claim any long term emotional injuries/emotional impact of the assault on her. Also, there is no medical/treatment report, on file, addressing any long term emotional impact. Nevertheless, the CICB understands that such incidents do leave impact on the lives of applicants, at least for some amount of time.

Compensation

14In 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 CICB "... 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 CICB is that it must be "in accordance with this Act". No enumerative list of factors informs the exercise by the Board of its discretion.

15Section 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

16Based 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 she sustained emotional injuries, as described and claimed by her in her Application.

17In assessing compensation for pain and suffering, the CICB has considered:

a) The nature of the assault causing injuries;

b) The possible emotional/psychological impact of the assault;

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

18It is important to note that the CICB has wide discretion to determine whether or not to award compensation to an applicant 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 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.

19After 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.

Loss of income

20The CICB has considered the Applicant’s income loss claim for an unspecified amount. The CICB advised the Applicant to furnish relevant supporting documentation such as employer’s report, in order to verify 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 relevant supporting documentation, 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 her claim for income loss and the claim in that regard is hereby denied.

AWARD

21The CICB now orders payment as follows:

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

TOTAL CURRENT AWARD: $6,000.00

22The 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

23THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $6,000.00