CRIMINAL INJURIES COMPENSATION CICB
Adjudicator: Kevin Cleghorn
Indexed as: (Re) 1602-02508
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 a pain and suffering award as a result of a physical assault that occurred on [date], 2015 where she sustained physical injuries. She had initially sought, and later declined to pursue, loss of earnings. The incident was reported to the police and resulted in charges against Offender 1 of two counts of obstruct peace officer and one count of assault with a weapon and charges against Offender 2 of two counts of obstruct peace officer, one count of assault and one count of assault peace officer. Offender 1 was convicted of obstruct peace officer on [date], 2017. Offender 2 was convicted of assault and obstruct peace officer on [date], 2017.
DECISION
2The CICB approves the claim and awards the Applicant the sum of $5,000.00 for her pain and suffering 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 her injuries are the result of the crime pursuant to subsection 5(a) of the Act.
4If the Applicant has met the above threshold, in deciding whether or not to exercise the discretion to award compensation and the amount thereof, the CICB must consider:
a. all the relevant circumstances, including whether the Applicant’s behaviour may have directly or indirectly contributed to the injuries pursuant to subsection 17(1) of the Act.
b. whether the Applicant has refused reasonable cooperation with, or failed to report promptly the offence to a law enforcement agency pursuant to subsection 17(2) of the Act.
c. any benefit, compensation or indemnity paid or payable to the Applicant from any source other than social assistance pursuant to subsection 17(3) of the Act.
HEARING
5The hearing was conducted in writing on the basis of the materials contained in the Applicant’s file.
Documentary Evidence
6The CICB received the following documents with respect to the claim: Letter from [Name] Police Service dated July 27, 2016; [Name] Police Service General Occurrence Report and Medical Report of Dr. [Name] dated April 15, 2016.
ANALYSIS AND DECISION
7For the following reasons the CICB grants the Application.
8The Applicant attended a house party on [date], 2015. There was a verbal argument which occurred with the Offender 1 at approximately 2:00 am. Offender 1 grabbed a bottle of bug spray and pointed it at the Applicant in close proximity to her face. The Applicant knocked the bottle out of her hand. Offender 1 called out to the Offender 2. Offender 2 ran up to the Applicant from behind and repeatedly hit her in the back of her head with the bottom of his open palm. Offender 1 shoved the Applicant to the floor and kicked her repeatedly. The Applicant was able to flee from the scene and contacted Police shortly thereafter.
9The Applicant experienced head trauma, a concussion and has recurring migraine headaches (although her migraine headaches pre-date this incident). She has concerns about memory loss, difficulties with concentration and vertigo. She also is fearful about permanent brain damage, a possible detached retina and is seeking a future consultation with a neurologist. No reports were available relating to eye damage, future treatment for post- concussion issues and/or any psychiatric/psychological issues. Dr. [Name] advises that the Applicant is being followed by a Psychiatrist, Dr. [Name] but confirms the head trauma and future need for rest to recover from the physical/emotional injuries. The Applicant remains fearful about attending at social events due to concerns about a recurrence of this incident.
10I accept the Applicant’s version of the events as set out in her Application because all of the information provided is corroborated by the Police information and the report of Dr. [Name].
11The CICB finds the Applicant to be a victim within the meaning of subsection 5(a) of the Act as a result of the physical assault perpetrated by Offender 1 and Offender 2. I accept the Applicant’s description of the nature of her injuries insofar as those injuries are confirmed by Dr. [Name]. The extent of the injuries and cause of the injuries as outlined in the Application are generally consistent with the police information.
12Officer [Name] of the [Name] Police Service advised the CICB in a telephone conversation on July 28, 2017 that the Applicant did nothing to provoke the assault in this instance. The CIBC finds that the Applicant did not do anything to contribute to her injuries in this instance. There is no information which suggests that the Applicant failed to co-operate with the police authorities and/or in the prosecution of Offender 1 or Offender 2.
13The CICB has considered the following factors in coming to its decision on the amount of the pain and suffering award:
The criminal action of the Offenders caused the injuries sustained;
The nature and extent of the injuries to the Applicant, which includes recurring migraine headaches (which may or may not be related to the assault), memory loss, possible future issues with her eye, vertigo, difficulties with her memory, difficulties with concentration and ongoing fear of a recurrence of this incident;
The injuries interfere with the Applicant’s daily activities to this day and impact her ability to secure and maintain employment;
There were two Offenders; and
The award is made from public funds.
AWARD
14The CICB orders payment as follows:
Subsection 7(1)(d) Pain and Suffering $5,000.00
TOTAL AWARD (AND COSTS) $5,000.00
PAYMENT
15THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $5,000.00
DATED at Toronto this 30th day of November, 2017.
Kevin Cleghorn, Member