(Re) 0803-70108, 2017 ONCICB 27

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: M. Saleem Akhtar, Jo-Anne Hughes

Date: February 09, 2017

Indexed as: (Re) 0803-70108

VARIATION ORDER

Introduction

1Pursuant to section 25 of the Compensation for Victims of Crime Act, RSO 1990, c. C.24, as amended (the “Act”) this is a Review Hearing to consider periodic payments being received by the Applicant.

Issue

2The Applicant is currently receiving monthly periodic payments in accordance with an Order of the CICB dated December 16, 2008. In this Order, the Applicant was found compensable for injuries, both physical and emotional, as a result of a crime of violence committed against him on [date], 2008 and was awarded compensation. Pursuant to section 25 of the Act, the CICB may, at any time on its own initiative, vary an order for compensation in such manner as it deems fit. The issue at this hearing is whether the periodic payments ought to be continued, varied or terminated.

The Original Order

3In the Order of the CICB dated December 16, 2008, the Applicant was found compensable for injuries sustained by him as a result of a crime of violence and was awarded compensation as detailed below:

• $4,000.00 pursuant to subsection 7(1)(b) of the Act, for loss of income, representing retroactive periodic payments in the amount of $1,000.00 per month from September 01, 2008 to December 01, 2008.

• $7,500.00 pursuant to subsection 7(1)(d) of the Act, for pain and suffering.

• Periodic payments in the amount of $1,000.00 per month, pursuant to subsection 7(1)(b) of the Act, for loss of income, effective January 01, 2009, subject to annual review or any other period of time, as the CICB may deem appropriate. The Applicant is required to notify the CICB of any change in circumstances regarding his ability to return to full-time employment.

4Currently, the Applicant is in receipt of a monthly payment of $1,000.00 since the date of the Order mentioned above, pursuant to subsection 7(1)(b) of the Act.

Applicant’s Oral Testimony

5In his sworn testimony before the CICB on January 25, 2017, the Applicant stated as follows:

• There has been no positive change in his health condition since the last review by the CICB in 2011. He referred to Dr.[Name]’s letter dated [date], 2016 in which Dr. [Name] wrote “previous medical report stands, there has been no change in [Applicant]’s condition.”

• The Applicant testified that “he could not hold anything in his hand, not even a cup. His right hand cramps up all the time. He cannot sleep properly due to pain and stress… Feels stressed most of the time and experiences nightmares to this day… Most of the time, his 80 year old mother and his uncle also in his 80s and his daughter 10 years old look after him and provide him support…He feels more stressed seeking their help. He feels ashamed that when he was supposed to be looking after his mother, he was not in a position to do so; rather he was depending on her… Lately, he has been trying to do a little bit of work to keep himself busy and see if he could manage his stress and loneliness… He worked occasionally…serving court documents to individuals and organizations such as legal profession… This way, he made a little money as well, but such income is not consistent, it is occasional in nature… There were months that he did not make any money whatsoever and then there were months he could make between $150.00 to $300.00. May not get every month, it is sporadic… Financially, he had gone so down that he had to sell his house, though, he got very little at the end, which has already been consumed…

• His monthly income from all sources including $1,000.00 from the CICB is $2,750.00. Against this, his heads of expenditure total up to $2,695.00…the expenses he had mentioned in Periodic Review Questionnaire are very conservative. For example he has not included some very basic things/items such as clothing, shoes, shaving needs, internet, occasional entertainment such as going to see a movie etc… In addition, he supports financially his 10 year old daughter. The money that she gets as “baby bonus” does not meet her day-to-day needs…she (his daughter’s mother) has never contributed anything to support their daughter.

• When asked that the total of his sources of income comes out to be $3,050.00 as per the “Review Questionnaire” and not $2,750.00 as stated by him in his testimony, the Applicant responded that he included the occasional income coming to him as well. He added that the month he completed the Questionnaire, he made close to $300.00 and that was the reason he, very honestly, had included that amount. He further added he did not make that much money every month and it would be devastating for him if $300.00 were to be taken away by the CICB reducing the monthly cheque to $700.00. It would “add enormous misery to his already miserable and painful life.” He pleaded “not to consider $300.00 included in the Questionnaire as income because it was not a regular and consistent income.”

Analysis and Decision

6The Act gives the CICB broad discretion to determine whether compensation ought to be awarded in any given case and, if so, determine the amount. Awards from the CICB are paid using public funds. They are not paid from the wrongdoer as would be the case if a victim pursued compensation through a civil action.

7In every case before it, the CICB is required to determine what the relevant circumstances are and to decide whether to grant or deny or reduce compensation including periodic payments 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 (Ont. C.A.). 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.

8In Skunk v. Criminal Injuries Compensation Board, 2006 11440 (ON SCDC), and Dugas v. Criminal Injuries Compensation Board, 2009 29192 (ON SCDC), the Divisional Court confirmed that the CICB has a wide measure of factual discretion and broad discretion in awarding compensation under the Act.

9After reviewing the evidence in its totality and having regard to all of the above mentioned circumstances of this case, and in light of the foregoing considerations, including Dr. [Name]’s letter dated [date], 2016, and the Applicant’s oral testimony at the hearing on January 25, 2017, which the CICB accepts as credible, reliable, internally coherent, consistent and compelling, as well as considering previous awards made by the CICB in similar fact cases/situations in order to determine what is considered a reasonable amount of compensation, the CICB determines that the periodic payments in the amount of $1,000.00 per month, pursuant to subsection 7(1)(b) of the Act would continue, subject to a review by the CICB in January 2020 or at such other time as the CICB may deem appropriate. At such a hearing, whether written or oral, the CICB will assess if the Applicant has gained any renewed capacity for earning employment income.