CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Evelyn J. Baxter Date: November 23, 2017 Indexed as: (Re) 1705-01632
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, R.S.O. 1990, c. C.24, as amended (the “Act”). The Applicant is seeking pain and suffering compensation as a result of a physical assault that occurred on [date], 2016 where he sustained physical injuries. The incident was reported to the Police and resulted in the Offender being charged and eventually pleading guilty to assault.
DECISION
2The CICB approves the claim for pain and suffering and awards the Applicant the sum of $5,000.00 for the reasons set out below.
ISSUES
3A conviction may be taken as conclusive evidence that an offence has been committed pursuant to section 11 of the Act. Given that there was a conviction in this case, the Applicant is required to prove, on a balance of probabilities, that his injuries are the result of the crime pursuant to subsection 5(a) of the Act.
HEARING
4The hearing was conducted in writing on the basis of the materials contained in the Applicant’s file.
Documentary Evidence
5The CICB received the following documents with respect to the claim: Police Report, Medical Report from his Family Physician, and other documents.
6The Applicant is an elderly man with serious health issues, including lung cancer. He was described as frail in the Police Report and in a letter from Elkin Injury Law.
7On [date], 2016, the Offender, the Applicant’s son, was in the Applicant’s home. The Applicant caught the Offender smoking crystal methamphetamine in the house and asked the Offender to leave or the police would be called. The Offender refused. The Applicant called police, and the Offender assaulted the Applicant by punching him in left side of his head. The punch caused one of the Applicant’s hearing aids to be driven into his ear canal perforating his ear drum. The other hearing aid flew out of the Applicant’s other ear from the force of the punch.
8The police were called, and they arrested the Offender and charged him with assault causing bodily harm. The Offender eventually entered a plea of guilty to the assault charge, was convicted, and sentenced to a short custodial sentence followed by probation.
9The Applicant saw his Doctor, Dr. [Name], three days after the incident. The Doctor reported there was bleeding in the Applicant’s left ear, and a perforated ear drum was diagnosed on [date], 2016 which the Doctor concluded was directly related to the assault committed by the Offender. The Doctor noted the hearing in the left ear also degenerated as a result of the assault. The perforation was completely resolved by [date], 2016.
10The Doctor also noted the Applicant likely suffered a minor concussion as a result of the impact of the punch from the Offender. The Applicant indicated he suffers daily headaches since the incident.
11The Applicant also claimed a $98.00 expense for damage to one of his hearing aids that had to be repaired; however, no receipt was provided.
ANALYSIS AND DECISION
12Given the guilty plea by the Offender, the CICB finds the Applicant to be a victim of a crime of violence within the meaning of subsection 5(a) of the Act. The only issue to be determined is whether the injuries claimed were caused by the crime of violence.
13In this case, the CICB is satisfied, on a balance of probabilities, based on the un- contradicted medical evidence from the Applicant’s Family Doctor, the Applicant suffered a perforated eardrum, additional hearing loss, and a minor concussion as a result of the assault by the Offender. Therefore, the Applicant’s claim for pain and suffering is compensable, and the CICB awards him the sum of $5,000.00. In making this award, the CICB took into consideration the age and vulnerability of the Applicant and the circumstances of the offense.
14The CICB generally requires receipts and/or other supporting documentation for any expenses that are claimed, both to verify the amount claimed and to confirm that such costs were not covered by other sources, such as private insurance. In the absence of such evidence, and having found no compelling reason to deviate from its usual practice in this instance, the CICB denies the $98.00 expense claimed for hearing aid repairs.
AWARD
15The CICB orders payment as follows:
Subsection 7(1)(d) Pain and Suffering $5,000.00
TOTAL AWARD $5,000.00
PAYMENT
16THE CICB ORDERS that the following sums be paid forthwith to:
Elkin Injury Law In Trust for the Applicant $5,000.00
17The 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.
DATED in Toronto this 23^rd^ day of November, 2017
__________________________
Evelyn J. Baxter, Member