(Re) 1507-00110, 2017 ONCICB 184

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Keith Forde Date: July 19, 2017 Indexed as: (Re) 1507-00110

ORDER

Introduction

1The Applicant asks the Criminal Injuries Compensation Board (CICB) to compensate him for injuries resulting from a crime of violence which occurred on [date], 2014, in accordance with the Compensation for Victims of Crime Act, RSO 1990, c. C.24, as amended (the “Act”). He is seeking compensation for pain and suffering incurred from one act of aggravated assault, perpetrated by the Offender. The Applicant is also seeking reimbursement for loss of income/wages, travel to treatment and other miscellaneous expenses.

2The Offender was convicted of aggravated assault and sentenced on [date], 2015 to jail for 15 months, presentence custody of 3 months, probation order – a life time weapons prohibition order- lifetime mandatory DNA order.

Decision

3The CICB approves compensation to the Applicant in the amount of $8,000.00 for pain and suffering and $810.45 for loss of income/wages for the reasons set out below.

Issues

4In this case, with respect to section 5(a) of the Act; there is no question that the Applicant was a victim of a crime of violence as proven through the conviction described above. As a result the CICB does not have to make a finding as to whether a crime of violence occurred.

• The CICB must assess all relevant circumstances and whether or not compensation should be awarded and if so, the amount;

• The CICB must determine whether the claim for loss of income/wages, travel to treatment and other miscellaneous expenses is supported.

Evidence

The Applicant’s evidence

5The following is a summary of the facts and circumstances taken from the Applicant’s Application information and from the [Name] Police Services correspondences to the CICB.

6On [date], 2014, [Name] Police Service received a radio call regarding a cab driver being stabbed on [Name] Street.

7Police attended and was met by the Applicant who advised Police he was at the Casino on [Name] Avenue, when the Offender approached his cab and asked for a ride to [Name] Street. The Applicant informed the Police that he had a bad feeling after the Offender told him the location that he wanted to be taken to, which was a five minute walk. The Applicant said that he gave the Offender walking directions. However, the Offender stated he wanted to be driven elsewhere.

8The Applicant reluctantly took the fare from the Offender and drove to the address on [Name] Street, which is a well-known "booze can." The Offender told the Applicant to park at the back of the premises; however, before the Applicant was able to fully stop the cab, the Offender produced a knife and swung it at the Applicant, striking his side. The Offender then swung again slicing the back of the Applicant's right hand. The Applicant was able to get control of the Offender’s hand and force him out of his cab.

9The Applicant suffered a puncture to his right side and a slice on his right hand from the Offender’s knife.

10The Casino was able to provide video footage to the [Name] Police of the Offender approaching the cab on [Name] Avenue and as such, he was identified by video.

11The Offender was subsequently arrested and charged accordingly.

12The Applicant also provided the CICB various documents in support of his claim.

13The CICB was in receipt of a medical report from [Name] Regional Health Sciences, noting that the Applicant presented with a small puncture to his right chest, a laceration to his right hand and head injury trauma. The Applicant’s right hand received a 3” knife wound which was sutured.

14The CICB was also in receipt of a Medical Report from plastic surgeon, Dr. [Name] who noted that the Applicant received a major hand injury. Dr. [Name] treated the Applicant and recommended him to the Upper Limb Clinic for follow-up treatment.

15The CICB was also in receipt of a Medical Report from [Name], Occupational Therapist, who noted that the Applicant sustained an injury to his right index finger, specifically extensor tendon, permanent disfiguration, residual stiffness and weakness.

Injuries

Physical

16The Applicant noted to the CICB in his Application that he suffered the following injuries:

• Laceration on left side of chest;

• 4 inch cut to back of right hand, required 13 stitches;

• Permanent sensitivity issues with right hand; and

• Cannot shake hands without pain.

Psychological/Emotional

• Anxiety.

Analysis

17Section 11 of the Act states that proof of conviction shall be taken as conclusive evidence that the offence has been committed. The CICB finds that the Applicant was subjected to a crime of violence as defined by section 5(a) of the Act, as a result of an act of aggravated assault, committed on [date], 2014, in the [City].

18Having considered the evidence presented in the Applicant’s Application and the Police information, the CICB is persuaded that the Applicant suffered physical injuries as a result of crimes of violence. The CICB finds the Applicant to be a victim within the meaning of section 5(a) of the Act.

19The CICB accepts that the Applicant suffered physical and psychological injuries and the related symptoms that are described by the Applicant in the documentary information submitted to the CICB. The CICB also accept that the Offender’s crime was the contributing factor to the Applicant’s physical and ongoing psychological injuries.

20In assessing compensation for pain and suffering, the CICB has considered the totality of the evidence of injury, including the Applicant’s documentary reports, the Police synopsis as well as the Medical Reports on file. The CICB was mindful of the circumstances of this incident and the physical and psychological injuries suffered by the Applicant and considered the following aggravated facts:

• That the assault was unprovoked;

• That the Applicant was a cab driver and was working at the time of the assault;

• That a weapon was used in the commission of a crime;

• That the Applicant received physical injuries requiring medical intervention and surgery;

• That the Applicant suffered and continues to suffer from the aftermath of the assault;

• The extent of the injuries sustained;

• The associated period of recovery; and

• The considerable impact the incident has had on the Applicant’s health, relationship and general and emotional state.

21Having considered these factors, the CICB awards the Applicant, $8,000.00 for pain and suffering.

22The CICB has considered the Applicant’s claim for income loss. Based on the Employer’s Report on file, the Applicant was earning a net average of $730.68 per week at the time of the incident, and the disability period is from [date], 2014 to [date], 2014, a period of 5 weeks. The Applicant’s net loss as per the CICB’s calculation is $810.45 taking into account the money the Applicant received from WSIB ($3,653.40 – 2,842.95). Having considered the particular circumstances of this case, the CICB finds no compelling reason to deviate from that practice. Accordingly, the CICB now awards the Applicant $810.45.

23The CICB generally awards compensation only to cover expenses related to treatment of the injuries sustained (i.e. hospital, medication or therapy expenses) and not for expenses related to work related tips. 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 work related tips.

24It is the CICB’s practice to only consider travel to treatment costs when an applicant is required to travel more than 40 kilometres each way (80 kilometres round trip) outside of his city of residence for treatment. The CICB finds no compelling reason to deviate from that practice under the circumstances.

25Since the Applicant was not required to travel more than 40 kilometres each way for his treatment/counselling sessions, these expenses are denied.

Award

26The CICB orders payment as follows:

Section 7(1) (b) Income Loss $ 810.45

Section 7(1) (d) Pain and Suffering $8,000.00

TOTAL AWARD $8,810.45

27The 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

28THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $8,810.45