Re 1512-01605, 2017 ONCICB 170

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicators: Guy Savoie, Kirsten Kurzuk, Louise Charette

Date: July 12, 2017

Indexed as: (Re) 1512-01605

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, RSO 1990, c. C.24, as amended (the “Act”). The Applicant is seeking expenses, loss of income, pain and suffering as a result of physical assault that occurred on [date], 2015 where she sustained physical/psychological injuries. The incident was reported to the Police and the following charges were laid against the Alleged Offender: aggravated assault, assault with a weapon and weapons possession. The AO was acquitted and the charges were dismissed.

ISSUE

2The principal issue in this hearing is whether the Applicant’s injuries resulted from a crime of violence within the meaning of section 5(a) of the Act. The Applicant’s account of the incident on [date], 2015 in both the criminal process and in her testimony before the CICB is that her injuries resulted from an accident. The onus rests with the Applicant to prove on a balance of probabilities that she was injured as a result of the commission of a crime of violence.

DECISION

3The CICB approves the claim and awards the Applicant the sum of $11,000.00 for pain and suffering. The CICB also awards the Applicant the sum of $3,145.50 for massage and acupuncture therapy, $500.00 contribution for medicines, and $150.00 for loss of income for the reasons set out below.

HEARING

Incident

The Applicant

4The Applicant provided oral evidence that she is the owner of a Japanese restaurant where the Alleged Offender works as a chef. The Applicant recalled that on the date of the incident, at the restaurant, she had an argument with the Alleged Offender. The conflict escalated to the Alleged Offender throwing bread at the Applicant, who threw the piece back. The Alleged Offender then picked up a long sushi knife and threw it at the Applicant from 20 feet away, hitting her in the arm and penetrating the left side of her chest before the knife fell to the floor.

5The Alleged Offender called an ambulance. The Applicant was rushed to hospital with life threatening injuries.

6The Applicant, as she maintained in the criminal trial, testified at the CICB that the throwing of the knife by the Alleged Offender was an accident and that the Alleged Offender did not intend to cause her any harm.

The Police Witness

7The Police Witness, the lead investigator of the incident, testified that, as reflected in the Police Report provided to the CICB, the Applicant’s account to Police described the incident as resulting from an accident.

8The Police Witness shared his view, based upon the investigation, that the injuries sustained by the Applicant were so severe that it is not plausible that they occurred because the Alleged Offender threw a knife at her from 20 feet away. He stated that it was the opinion of the forensic officer that it was more likely that the Applicant was stabbed twice: once in the left arm; and then in the left side of her chest as the Alleged Offender stood over her.

9The Police Witness testified that as a result of the incident, the Alleged Offender was charged with aggravated assault, assault with a weapon, and weapons possession. The Alleged Offender was acquitted of all charges. The Police Witness indicated that the Court was not satisfied the Crown had made out its case and there was reasonable doubt as the Applicant maintained that the incident had been an accident.

Injuries

Physical

10The Applicant testified that she was rushed to hospital with life threatening injuries and had to undergo emergency surgery to repair a punctured lung, diaphragm, and colon.

11The Applicant was hospitalized for four days and then released. For the next three weeks she could barely walk and spent most of her time in bed recovering while her mother cared for her. Immediately after the surgery - and for a period of three months, she was required to take medication to manage the pain and employed the services of an acupuncturist and massage therapist along with taking herbal medicine.

12In addition, in the months following the incident the Applicant experienced digestive issues as a result of the injuries that have now ended.

13Documentary evidence provided to the CICB as part of this Application (including the Police Report dated [date], 2016; Hospital Records from [Name] Hospital (“the Hospital”), and a Medical Report from the Applicant’s Family Physician) generally accord with the Applicant’s oral evidence concerning the nature and extent of her injuries.

14The Hospital documents record the Applicant’s injuries from the incident as being caused by “2 stab wounds to the left lateral chest”.

15Shortly after arriving at the Hospital, the Applicant underwent the following surgery: “trauma laparotomy, repair of diaphragmatic injury, and repair of transverse colon injury.” The Applicant remained in the Hospital for four days and was then released to finish her recovery at home.

Emotional

16The Applicant also spoke of emotional impact including her mental struggles, nightmares, and fears that someone will hurt or attack her.

17The Applicant advises that she would like to seek counselling to address the emotional injuries. In the past she has spoken to her Family Physician and her minister.

Expenses

18In addition to her request for pre-authorized counselling to address the impact of her injuries, the Applicant is seeking compensation for the following expenses:

• Massage and acupuncture therapy;

• Attendances at the [Name] Clinic;

• Medication expenses;

• Loss of income (supported by income tax documentation).

ANALYSIS AND DECISION

19For the following reasons the CICB grants the Application.

20To be eligible for compensation under s. 5(a) of the Act, the Applicant must show that she suffered injuries as a result of a crime of violence. Subsection 16 (1) of the Act provides that compensation may be awarded whether or not a person has been prosecuted or convicted of the offence giving rise to the injury.

21Despite the finding in the criminal trial, the CICB may come to a different conclusion as the Applicant in CICB matters need only to prove on a balance of probabilities that she was injured as a result of a crime of violence.

22Based upon a thorough review of the oral and documentary evidence provided, the CICB finds the Applicant to be a victim of a crime of violence under s. 5(a) of the Act. While the Applicant’s evidence was that her injuries resulted from an accident and the oral evidence of the Police Witness and the Police Report suggest that the Applicant’s injuries were as a result of an aggravated assault, the CICB is convinced, on a balance of probabilities that a crime of violence, within the meaning of the Act, occurred.

23The law is well established that an assault is a general intent offence. General intent offences, as a rule, are those which require the minimal intent to do the act which constitutes the actus reus. Proof of intent is usually inferred from the commission of the act on the basis of the principle that a person intends the natural consequences of his or her act. See R. v. Daviault, 1994 3 S.C.R. 63.

24The documentary and oral evidence both indicate that the Applicant suffered life-threatening injuries during an incident on [date], 2015 involving the Alleged Offender. This evidence is undisputed. Given the nature of the injuries, on a balance of probabilities, they could not have been inflicted in an accidental, reckless, or careless manner.

Pain and Suffering

25In assessing compensation for pain and suffering, the CICB has considered the nature of this incident and how it affected the Applicant. In this case, the Applicant was stabbed by an employee at her restaurant. The injuries sustained were severe and live threatening. She was hospitalized for four days and spent another month at home where she was restricted to bed rest. Since the incident/surgery she has experienced digestive issues and the inability to lift heavy objects. The Applicant also spoke of the emotional impact including nightmares, anxiety and fear that someone might hurt her again.

26Having regard for all the circumstances including the Applicant’s evidence, the CICB assesses this award at $11,000.00.

Counselling

27Based on the Applicant's stated intention to enter into therapy in the near future the CICB authorizes up to $1,800.00 (exclusive of any applicable taxes) for counselling expenses to be paid directly to an approved treatment provider upon receipt of a Curriculum Vitae with an outline of credentials for the treatment provider (unless the CICB already has a copy on file). These sessions can only be accessed when the therapy sessions are not covered by other sources, such as the Applicant’s place of employment or insurance benefits. The therapy sessions must be completed within 36 months of receipt of this Order. It is the CICB’s practice to award up to $100.00 per session for therapy, or up to $125.00 per session for registered psychologists. Payment may be made directly to an approved treatment provider every month, upon submission of an invoice and the required verification from the Applicant. The CICB may also consider therapy expenses that were incurred between the time that the Applicant submitted her final set of documents to the CICB and the receipt of this Order. If there are such expenses, the CICB will deduct these from the pre-authorized $1,800.00 amount described above.

Expenses

28The CICB had reserved the decision of the Application in part to permit the Applicant two weeks to provide the required receipts in support of her claim for medical expenses. The CICB has received the Applicant’s submissions and has made the following rulings below.

29The CICB considered the Applicant’s claims in respect to therapy costs, for which receipts were provided. The CICB finds such costs for massage and acupuncture therapy to be reasonable within the context of the Act and will therefore award $3,145.50 for such costs. The Applicant’s claim for costs for “services” provided by “[Name] Clinic” in the amount of $300.00 is denied. There was insufficient information provided on the invoice to determine the nature of the service provided. As a result, that portion of the Applicant’s claim shall be denied.

30The CICB has considered the Applicant’s claims in respect to medication costs in the amount of $4,500.00 for non-prescription medication (ginseng in the amount of $3,800.00 and herbal medicine for $700.00). Normally the CICB will only award costs for prescription medication however given the Applicant’s evidence that these were used to address her digestive issues and low energy levels after the incident, the CICB finds it reasonable to award a contribution of $500.00 towards such costs.

Loss of Income

31The CICB has considered the Applicant’s income loss claim. It was the Applicant’s evidence that the restaurant was closed for three days before her sister came to help her. It is the CICB’s practice to reimburse income loss to a maximum of $1,000.00 per month or $50.00 per day 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 $150.00 for income loss (3 x days @ $50.00 per day).

AWARD

32The CICB orders payment as follows:

Subsection 7(1)(a) Expenses – massage and acupuncture $ 3,145.50

Subsection 7(1)(a) Expenses – medication contribution $ 500.00

Subsection 7(1)(a) Future counselling $ 1,800.00

Subsection 7(1)(b) Income Loss $ 150.00

Subsection 7(1)(d) Pain and Suffering $11,000.00

TOTAL AWARD (AND COSTS) $16,595.50

Less: Preauthorized treatment costs -$ 1,800.00

TOTAL CURRENT AWARD $14,795.50

PAYMENT

33THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $14,795.50