(Re) 1606-03962, 2017 ONCICB 318

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Anne-Marie Langan Date: November 06, 2017 Indexed as: (Re) 1606-03962

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 compensation for pain and suffering and reimbursement for medical expenses she incurred as a result of an assault that occurred on [date], 2015 where she sustained physical/psychological injuries. The incidents were reported to the Police and resulted in each of the Alleged Offenders entering into a peace bond.

DECISION

2The CICB approves the claim and awards the Applicant the sum of $2,808.36 for the reasons set out below.

ISSUES

3The absence of a conviction does not mean that the CICB is precluded from making an order of compensation. 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. The Applicant is required to prove, on a balance of probabilities, not only that she was a victim of a crime of violence but also that her injuries resulted from the crime pursuant to subsection 5(a) of the Act.

4The Applicant must provide reliable evidence to support her claims for:

a. expenses actually and reasonably incurred as a result of her injury pursuant to subsection 7(1)(a) of the Act.

HEARING

5The Applicant appeared and provided oral testimony and submissions.

6One of the Alleged Offenders [Alleged Offender 2] participated in the hearing by telephone from another location.

Documentary Evidence

7The CICB received the following documents with respect to the claim:

Application

8With respect to the facts of the incident, the Applicant referred to the Police Incident Report which she attached to her Application.

Police Report

9According to the Police Incident Report, the Applicant was biking with her dog on the sidewalk when she was intercepted by Alleged Offender 1 and Alleged Offender 2. Alleged Offender 1 then went on to put his legs on each side of the bike and held onto her bike refusing to let her to leave. At one point Alleged Offender 1 left and walked away and Alleged Offender 2 remained. Alleged Offender 2 tried to kick her and her dog and grabbed her. The Applicant managed to defend herself and pedestrians eventually assisted. The Applicant provided the Police with the shirt she had worn during the incident and the Officer noted the front right and left straps to be ripped, as well as blood stains on the right armpit and the left front chest/neck. The written statement provided by the Applicant to Police states that Alleged Offender 2 kicked her and her dog and knocked her glasses and hat off her during a scuffle that ensued. When she bent down to get her glasses, he began to hit her again and she pushed him into an oncoming cyclist. When he got up he attacked her a third time. In the end Alleged Offender 1 and Alleged Offender 2 agreed to enter into a peace bond. The Applicant agreed to the terms of a peace bond, with conditions not to associate with her.

Medical Report by Dr. [Name]

10The Report confirmed that he saw the Applicant on [date], 2015. There were injuries on her neck, shoulders and back from the incident. The Doctor prescribed pain medication, an x-ray and physiotherapy as well as massage therapy. The Doctor confirmed that the Applicant missed work due to medical appointments

11It confirms that the Applicant was treated her for injuries to her upper back, neck and chest. The Applicant had prior injuries in these areas due to rugby but her symptoms had resolved prior to the incident. She was given massage therapy and myofascial therapy at the clinic.

Written Response by Alleged Offender 1

12It confirms that the Applicant was biking on the sidewalk with her dog and had that she ran into Alleged Offender 1 with her bicycle. Alleged Offender 1 told the Applicant she was not supposed to ride a bicycle on the sidewalk and she responded by shouting obscenities and that Alleged Offender 1 did not own the sidewalk. He proceeded to the end of the bridge to wait for Alleged Offender 2. When Alleged Offender 2 did not come he went back towards the Applicant and saw the Applicant hitting Alleged Offender 2 who “was bleeding and his shirt torn and covered in blood”. He suggests that Alleged Offender 2 was only acting in self-defence and the Applicant was unharmed. According to Alleged Offender 1 the witness whose testimony the Police relied on to lay charges did not see the altercation. He was charged with assault and forcible confinement. He mentions that the charges were later dropped.

Written Response by Alleged Offender 2

13It confirms that Alleged Offender 2 saw the Applicant cycling towards him with her dog on a leash and witnessed the verbal altercation between his husband Alleged Offender 1 and the Applicant, although Alleged Offender 2 does not remember what was said other than that she told Alleged Offender 1 that he does not own the sidewalk and must be dead inside if he cared so much about her biking on the sidewalk. Alleged Offender 2 commented as the Applicant went by that it was illegal to ride her bike on the sidewalk and the Applicant explained that it was too dangerous to ride on the road with her dog. When he told her she should dismount if she was going to go on the sidewalk, and this infuriated the Applicant so much she began punching Alleged Offender 2 in the face. When he grabbed her arms to stop her from punching him, she shoved him into the southbound lane and when he tried to get up she continued to punch him. A woman got out of a car and stood between them to stop the fight. Alleged Offender 2 then saw Alleged Offender 1 running up the bridge towards him. He then realized his right eye was bleeding and Alleged Offender 1 called 911. He confirms that “numerous onlookers had congregated”. He was taken to the hospital for stitches. He admits to being dazed and confused. He was later charged with assault which surprised him as he sees himself as the victim. He entered into a peace bond. Alleged Offender 2 provided pictures of his injury which is mainly a black eye with a cut underneath it. You can see the ripped shirt and blood on his shirt.

Employer’s Report

14It was returned blank by the Employer with a letter that states that the Applicant did not lose any wages during the relevant time period.

Receipts for treatment expenses

15The Applicant provided the following receipts for treatment expenses:

i. [Name] treatment

a. massage therapy $90.40 yes Receipt on file

b. massage therapy $73.45 yes Receipt on file

c. massage therapy $56.50 yes Receipt on file

ii. Prescription Drugs $30.56 + 21.79

iii. [Name] Chiropractic $382.66

iv. s. 22 expenses: The Applicant obtained her own Medical Report from [Name] and her own Police Report:

a. Fee for Medical Report $100 yes Receipt on file

b. [Name] Police Records $53.00

Oral Evidence

Applicant’s Evidence

16The Applicant testified that she was taking the north side bike path and using the [Name] Bridge with her dog. She was biking on the sidewalk as her dog was leashed to bike. There was a fair amount of foot traffic. Alleged Offender 1 stepped in front of her bike. At first the Applicant was not sure why he was doing this and thought maybe he was romantically interested in her. She slowed down as she approached him and he caught her front wheel of bike between his legs. Alleged Offender 1 said that the Applicant was not supposed to be riding on the sidewalk. The Applicant pointed out to him that it was not safe for her dog to go on the road. There was no further physical interaction between Alleged Offender 1 and the Applicant.

17The Applicant noted that there were three people in Alleged Offender 1's group. Alleged Offender 1 and another person walked away. However, Alleged Offender 2, continued to argue with her about being on sidewalk. The Applicant admits that she called him “pathetic” at which point Alleged Offender 2 lunged at her. According to the Applicant she hadn’t moved from when Alleged Offender 1 had stopped her bike and Alleged Offender 2 came from her side angle and was trying to kick her dog and her. At this point the two started to grapple and Alleged Offender 2 pulled her shirt and her chest became exposed. The Applicant admits that she did push him into the concrete side of the bridge and that the two broke apart. At this point she bent down to pick up her hat and sun glasses and Alleged Offender 2 came at her a second time at which time they fought again. The Applicant pushed him into one of the cyclists. Alleged Offender 2 got up and came at her a third time at which point she was trying to hit him as hard as she could. His eye was swollen and bruised. None of the bystanders did anything to intervene. A teenager said “guys stop fighting”. A middle aged person came and intervened.

18After the fighting stopped, the Applicant walked away and called 911. With respect to the Police investigation the Applicant explained that the responding officers asked her what happened and she explained the above events to them and made written statement. A gentleman came and offered to testify to what he had seen. The Police Officer tried to dissuade her from pursing this. When the Applicant called to follow up with the Police she told them that she wanted to pursue charges. She explained she had a female friend who saw the incident and offered to make a statement. The Detective told her that if she pursued criminal charges she would have to get a lawyer. She was offered the alternative of a peace bond. The Detective explained that if the Alleged Offenders don’t breach it within one year then there would be no charges.

Testimony of Alleged Offender 2

19Alleged Offender 2 testified that on the afternoon in question he was walking over the [Name] Bridge heading north and there was a lot of pedestrian traffic. He was walking in a single file behind his husband Alleged Offender 1. When he came over the hill he saw the Applicant using the outside of sidewalk and she had her dog on a leash on the inside. The dog was pulling the bicycle and was on the left side of the sidewalk. Alleged Offender 2 stopped and stood along the concrete side of the bridge and his husband continued along. His husband was 2 car lengths ahead. There was someone else on sidewalk but it was not someone that either of them knew. Alleged Offender 2 saw Alleged Offender 1 on the outside of the sidewalk on the left and the Applicant was taking up whole sidewalk. He saw the Applicant cycle directly into Alleged Offender 1 and she shouted at him “you don’t own the fucking sidewalk” and “you must be fucking dead inside to care so much”. Alleged Offender 2 said he saw Alleged Offender 1's arms waving around in the air and never saw Alleged Offender 1 touch her bicycle. The Applicant was shouting and was very angry at him. Alleged Offender 1 and the Applicant only spoke for a minute or so. By then the Applicant had dismounted the bicycle and was coming up the hill. The Applicant continued up the sidewalk. She was walking bicycle on the inside of road and she continued up the sidewalk. Alleged Offender 2 addressed her as she had been horrible to Alleged Offender 1. The Applicant passed him on the sidewalk and had her bicycle and her dog between them. Alleged Offender 2 asked the Applicant why she could not use the bicycle lane and the Applicant explained to her that was not safe for her dog. Alleged Offender 2 recommended that she dismount bicycle and walk over the bridge. At this time the Applicant threw the bicycle down and lunged at Alleged Offender 2 and punched him in the face. Alleged Offender 2 was trying to keep her hands from hitting him and used his hands to push her arms together at her side. The Applicant pushed him back into the concrete railing of [Name] Bridge causing him to stumble. Alleged Offender 2 started to get up and the Applicant started punching him again. This time the Applicant pushed him backwards into the bicycle lane into the road. A cyclist swerved to avoid hitting him. Traffic in the next lane also stopped because of the swerving bicyclist. Alleged Offender 2 started getting up because he was laying in the road and the Applicant began punching him again over and over again. A car stopped in the middle of the lane and a 60 year old woman got out of the car. The woman came over and she came between them. The Applicant who was still hitting him. She gently pushed the Applicant away from Alleged Offender 2. At this point Alleged Offender 2 could hear Alleged Offender 1 shouting. Alleged Offender 1 was running up the bridge calling his name. The Applicant was red and flushed in the face and she got back onto her bicycle. Alleged Offender 2 denied trying to kick the Applicant or her dog. At this time the Applicant jumped on her bicycle and left the scene. A bystander said they felt that Alleged Offender 2 needed an ambulance because his eye was bleeding. An ambulance was called and came quite quickly. The paramedics asked him if he had lost consciousness but he never had. The Applicant reappeared walking her bicycle without her dog. Alleged Offender 2 was distressed when he saw her coming. One of the paramedics asked him to go into ambulance. The other paramedic walked up the hill to meet the Applicant. Then the Police arrived. The paramedics told him he would have to go to the Hospital. He sat in the ambulance while everyone was being interviewed. The Officer did not see him there. The Police threatened to charge Alleged Offender 1 and came to tell Alleged Offender 2 that. The Police Officer came into the ambulance and took notes of their interview. He asked Alleged Offender 2 if he saw Alleged Offender 1 touch the Applicant’s bicycle but he said he had not seen it. The Officer terminated the interview. The Officer did not ask him anything about the encounter between Alleged Offender 2 and the Applicant. From his perspective he had been the assault victim. Alleged Offender 2 went on to find out that the Applicant had told all sorts of lies to Police and had said things on social media. The charges resulted in his being dragged through the legal system and he had to represent himself. He felt that he had been arrested without being interviewed. The Lawyer told him that the Police had already decided that they would arrest and charge him. According to Alleged Offender 2 the Applicant “used the legal system to assault him a second time”.

20When the CICB asked Alleged Offender 2 why he had agreed to a peace bond if he felt so strongly that he was the victim of this incident he read out the statement he had agreed to which was relatively neutral. He explained it would have cost $11,000 for them to represent themselves and that it would cost another $20,000 if they would go to court. All of the charges were dropped against Alleged Offender 1 and Alleged Offender 2. The whole procedure was very traumatic for Alleged Offender 2 and took about 3 months. The trial would have been about 12 months later which would have resulted in a year of indecision.

21The Applicant asked Alleged Offender 2 questions regarding his relative position to Alleged Offender 1 during her conversation with Alleged Offender 1 and questioned how Alleged Offender 2 could have heard what was being said if he was 2 car lengths away from his husband at the time, but Alleged Offender 2 insisted he could hear her because she was shouting so loudly. The Applicant also posed other questions to highlight discrepancies in Alleged Offender 2's testimony concerning who started the altercation between them and what Alleged Offender 1 would have seen. These same points are outlined in emails that the Applicant sent to the CICB in response to the statements made by Alleged Offender 1 and Alleged Offender 2 on September 22, 2017 and October 12, 2017. In these emails the Applicant highlighted some discrepancies in each of the statements made by Alleged Offender 1 and Alleged Offender 2 as follows:

a. With respect to Alleged Offender 1’s statement she points out that if she was coming aggressively at Alleged Offender 1 with her bicycle she would have knocked him backwards and the fact that this did not happen suggests that she was going very slowly and that Alleged Offender 1 had ample time to step aside. Furthermore, Alleged Offender 1 admits that he was the one to initiate the conversation by confronting her about biking on the sidewalk and that she was in no way the instigator of the confrontation. She further points out that there is a big gap in the information provided by Alleged Offender 1 with respect to what happened between their conversations and when he saw her hitting his husband. It is difficult to understand why he did not come to his husband’s defence earlier if he had in fact witnessed the altercation between the two as he attests. It is also difficult to understand how he could have noticed the one witness in the blue shirt when he admits that the bridge was full of pedestrians at the time. In essence the Applicant points out that Alleged Offender 1 was not a witness to what occurred between her and Alleged Offender 2 and could not know who else witnessed the incident.

b. With respect to Alleged Offender 2's statement the Applicant points out that there were discrepancies in his statement concerning his relative position to Alleged Offender 1 during her conversation with Alleged Offender 1 and with respect to the Applicant’s relative positioning with Alleged Offender 2 at the beginning of their interaction and in particular the fact that he stated that the Applicant had already passed him on the bridge when he addressed her yet he also states that she lunged at him and that both cannot be true. She also points out that Alleged Offender 1 could not have seen the incident since he did not intervene and did not arrive until after two strangers had broken them up.

ANALYSIS AND DECISION

22The Applicant had the onus of proving that she was a victim of a crime of violence and that she sustained injuries as a result pursuant to subsection 5(a) of the Act. The standard of proof in cases before the CICB is “on a balance of probabilities.” Clear, convincing and cogent evidence is required to satisfy the standard of proof. In essence, the CICB must determine whether the Applicant’s allegations regarding the incidents are substantially the most probable version of events to have occurred. The CICB must not consider the Applicant’s evidence in isolation. We are required to assess her evidence against the evidence of the Alleged Offenders and the documentary evidence submitted.

23The main, or even sole, issue in this case came down to the credibility of the two parties. The CICB prefers the evidence of the Applicant over that of Alleged Offenders for the following reasons.

24The CICB did not have issues with the Applicant’s credibility. The Applicant’s evidence was internally consistent. Her account of the incident in her written statement to the Police on the day of the incident and oral evidence were consistent and did not change over time or after cross-examination, even when a different version of events would have been to her advantage. For instance, she could have denied that she assaulted Alleged Offender 2 during the incident. However, she did not do so. Her story remained consistent in that she maintained that she did fight back and on the third instance was very forceful towards Alleged Offender 2 in order to stop him from continuing to assault her, thereby causing an injury to his eye.

25With respect to the incident involving Alleged Offender 1 the CICB finds that Alleged Offender 1 did step in front of the Applicant’s bicycle in order to confront her about cycling on the sidewalk thereby preventing her from going forward. However, the CICB finds that there is insufficient evidence that the interaction between Alleged Offender 1 and the Applicant included any elements of an assault. At most, his actions may have constituted forcible confinement. Alleged Offender 1 does not appear to ever have laid hands on the Applicant and after having addressed his concern about the safety of biking on the bridge, let the Applicant go. The Applicant admitted that their interaction was a short one and even her description of the incident did not disclose any element of violent behaviour.

26The CICB does find that Alleged Offender 2 assaulted the Applicant first. Firstly, it is clear from both parties’ evidence that it was Alleged Offender 2 that confronted the Applicant first and thereby instigated the conflict between them. The Applicant’s version of what ensued is more logically consistent than Alleged Offender 2's account for several reasons:

a. The Applicant’s account of the parties relative positioning during the three altercations was more consistent and logical;

b. The Applicant’s explanation of how the events unfolded was more consistent with what the Police reported:

c. The Applicant’s version of the events is more believable in that it makes more sense that Alleged Offender 2 would react strongly to the Applicant insulting him and would be the first to lash out, as described by the Applicant than that the Applicant would react to Alleged Offender 2 simply telling her that riding her bike on the bridge was illegal by punching him in the face without any physical provocation on his part. Furthermore, the Applicant’s explanation that she bent down to collect her sunglasses and hat after having pushed Alleged Offender 2 back, thinking the altercation was over, when he came back at her a second time as more logically consistent than Alleged Offender 2's account that she continued to hit him after having pushed him down on two separate occasions. The Applicant confirmed that during the scuffle the Applicant was much more forceful in an attempt to dissuade Alleged Offender 2 from continuing with the altercation.

d. Alleged Offender 2's version of events paints him and Alleged Offender 1 as blameless victims and that neither was at fault in any way for what ensued. They both exaggerate certain facts (such as their relative distance, the presence or absence of witnesses, etc...) in order to give credence to their account. Also it is clear that they “compared notes” when making their statement in order to support each other’s versions of events when there were large gaps in time when neither could have been aware of what was said or done by the other.

e. Finally the Police laid charges against Alleged Offender 1 and Alleged Offender 2 based not only on the Applicant’s statements but also based on witness statements that were made to them. They did not lay charges against the Applicant despite both Alleged Offender 1 and Alleged Offender 2 alleging that it was she who attacked Alleged Offender 2 first and ran into Alleged Offender 1 on her bicycle. The Police must have concluded based on the evidence before them, not all of which was available to the CICB, that there were “reasonable and probable” grounds to believe that the Applicant had been assaulted in order to charge the Alleged Offenders and would have charged the Applicant with assault had they felt there were reasonable and probable grounds to believe that she had commenced the physical altercation with Alleged Offender 2. Alleged Offender 2 alleged that police were “biased” but the CICB sees no evidence of bias on the Police’s part based on the documentation that was provided.

27For the reasons detailed above, the CICB finds that on a balance of probabilities that the incidents occurred as reported by the Applicant. The CICB is persuaded that the Applicant was a victim of a crime of violence, specifically forcible confinement by Alleged Offender 1 and assault by Alleged Offender 2. The CICB therefore concludes that the Applicant is a victim under section 5(a) of the Act and is entitled to compensation.

28In assessing the Applicant’s damages for pain and suffering the CICB considered that the Applicant’s sense of safety in the community was affected by this incident. After the incident she felt she had to give her dog to her parents as she no longer felt it was appropriate to have a dog in the city. The Applicant used all of her paid sick days and vacation from work in going to medical appointments and submits that her work performance was affected after the incident, resulting in her contract not being renewed and in her having to find alternative employment. The incident caused the Applicant to reinjure her upper back and shoulder and she had to undergo further physiotherapy and massage therapy. Based on an assessment of her injuries, the CICB awards the Applicant $2,000.00 in damages for pain and suffering.

29The CICB considered the Applicant’s claim or claims in respect to the costs she incurred in purchasing chiropractic care, medication and massage therapy, for which receipts were provided. The CICB finds such costs to be both reasonable and within the context of the Act and will therefore award $655.36 for such costs.

30The CICB has considered the Applicant’s claim for reimbursement for the cost of obtaining reports from a Doctor and Police in support of her application and awards $153.00 for these expenses.

31With respect to the Applicant’s claim for wage loss, the Employer’s Report did not confirm any wages lost as a result of the incident. The CICB was asked to consider reimbursing the Applicant for the day lost when she went to the Doctor to obtain her medical report but this does not qualify as wage loss directly related to the incident and is therefore not compensable.

AWARD

32The CICB orders payment as follows:

Subsection 7(1) (a) Expenses $ 655.36

Subsection 7(1) (d) Pain and Suffering $2,000.00

Section 22 Costs $ 153.00

TOTAL AWARD (AND COSTS) $2,808.36

PAYMENT

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

The Applicant $2,808.36