CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Kevin Cleghorn
Indexed as: (Re) 1705-01382
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, treatment expenses, loss of wages/income and future treatment costs as a result of a physical assault (a shooting incident) that occurred on [date], 2015 where he sustained physical injuries. The incident was reported to the Police and resulted in charges against the Offender of attempted murder, possession of a firearm and possession of a firearm contrary to a probation order. The Offender was convicted on all charges.
DECISION
2The CICB approves the claim and awards the Applicant the sum of $15,000.00 for his pain and suffering, $2,630.19 for the costs of his medical marijuana paid to date and $2,400.00 for the costs of future psychotherapy 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.
4If the Applicant has met the above threshold, in deciding whether or not to exercise our discretion to award compensation and the amount thereof, we 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: Case File Synopsis from [Name] Police Service; Arrest Report of [Name] Police Service; Emergency Department Records from [Name] Memorial Hospital; Letter from Dr. [Name] dated April 6, 2015; Records from [Name] Health Science Centre; Medical Report from Dr. [Name] dated July 24, 2017; Medical Report of Dr. [Name] dated June 27, 2017; WSIB CSPAAT Health Professional’s Progress Report of Dr. [Name] dated June 13, 2016; Shoulder and Elbow Speciality Clinic Comprehensive Assessment Report of Dr. [Name], Orthopaedic Surgeon, and [Name], Physical Therapist, dated March 14, 2016; Medical Report of Dr. [Name] dated June 29, 2015; Physiotherapy Report of [Name] dated September 15, 2017; Therapy Report of Dr. [Name] dated August 8, 2017; Report of Dr. [Name] dated November 18, 2015; and receipts for the cost of medical marijuana.
ANALYSIS AND DECISION
7For the following reasons the CICB grants the Application.
8The Applicant worked as a property manager at an apartment complex. He was walking the grounds of the apartment complex on [date], 2015 when he noticed the Offender attempting to gain entry into vehicles parked in the adjacent lot. The Applicant followed the Offender and noticed that he engaged in a verbal argument with one of the tenants who was on the balcony of the third floor of the building. The Applicant approached the Offender and advised him that he was on private property and would have to leave. The Offender continued walking through the parking area and attempted entry into another vehicle. The Applicant informed him that he was calling the police. The Offender shot the Applicant in the pelvis with a handgun. The Offender then shot him a second time through his neck and shoulder.
9The Applicant was taken to [Name] Memorial Hospital. Although his injuries were not life threatening, they were extremely serious. He had wounds to his neck, abdomen and pelvis. He underwent a laparotomy, a loop sigmoid colostomy of the abdomen and a transection of part of the urethra. He had a left shoulder fracture to his scapula. He underwent reversal of his colostomy on [date], 2015. He had significant pain and discomfort. He was unable to work for months as a property manager and not at all in his part-time painting business. He has undergone physiotherapy and psychotherapy (although he advises that the Workplace Safety and Insurance Board discontinued his coverage for psychotherapy in September, 2017). He continues to have significant shoulder pain, issues with bowel movements and urinary function and issues with sexual function. Dr. [Name] has diagnosed him with post-traumatic stress disorder. Dr. [Name] advises that the Applicant’s need for medical marijuana is “ongoing”.
10The Applicant claims a dramatic change to his social life as a result of this incident. He is reluctant to socialize and avoids crowds. He has frequent nightmares and continuing flashbacks about the incident.
11The Offender was charged with attempted murder, possession of a firearm and possession of a firearm contrary to a probation order. The Offender was convicted of all the charges.
12I accept the Applicant’s version of the events as set out in his Application because all of the information provided is corroborated by the Police information and the Hospital records. The attack was wholly unprovoked. The Applicant did absolutely nothing to contribute to his injuries. There is no indication that the Applicant was not co-operative with the Police in the course of the investigation or in the prosecution of the charge.
13CICB finds the Applicant to be a victim within the meaning of subsection 5(a) of the Act as a result of the act of physical assault perpetrated by the Offender. I accept the Applicant’s description of the nature of his injuries. The extent of the injuries and cause of the injuries as outlined in the Application are consistent with the Hospital records.
14The Applicant has incurred costs for medical marijuana and will be reimbursed for those costs confirmed by actual receipts. The information about the cost of future purchase of medical marijuana is vague and uncertain. As such, an award for future purchase of medical marijuana cannot be made at this time.
15Similarly, there was a lack of information (and no income tax returns and/or notices of assessment) to adequately quantify loss of wages/earnings. The Applicant has not satisfied the burden of proof to allow any award for loss of wages/earnings to be made in this instance.
16It is clear, however, that the Applicant does require future therapy to deal with the aftermath of this incident. He needs ongoing therapy for the symptoms and impact of the post-traumatic stress disorder that has resulted from this incident.
17Based on the Applicant’s stated intention to enter into therapy in the near future, the CICB authorizes up to $2,400.00 (exclusive of any applicable taxes) for counselling expenses to be paid directly to a qualified treatment provider upon receipt of a Curriculum Vitae outlining the credentials of the service provider (unless the CICB already has a copy on file). These sessions can only be accessed when the therapy sessions are not covered by other sources, such as the Applicant’s place of employment or insurance benefits. Therapy sessions must be completed within 36 months of receipt of this Order. It is the CICB’s practice to award up to $100.00 per session for therapy, or up to $125.00 per session for registered psychologists. Payment may be made directly to the treatment provider on a monthly basis, upon submission of an invoice and the required verifications from the Applicant. The CICB may also consider therapy expenses that were incurred between the time that the Applicant submitted his final set of documents to the CICB and the receipt of this Order. If there are such expenses, the CICB will deduct these from the pre-authorized $2,400.00 amount described above.
18The CICB has considered the following factors in coming to its decision on the amount of the pain and suffering award:
The criminal actions of the Offender caused the injuries sustained;
The nature and extent of the injuries to the Applicant, which includes significant pain and discomfort arising from wounds to his neck, abdomen and pelvis and his left shoulder facture. He has had to endure multiple surgical interventions. He has undergone physiotherapy and psychotherapy. He continues to have significant shoulder pain, issues with bowel movements and urinary function and issues with sexual function. He has been formally diagnosed with post-traumatic stress disorder. He has a restricted social life, nightmares, flashbacks and continuing fearfulness;
The injuries have interfered with the Applicant’s daily activities to the extent that he remains in constant pain, is fearful and hypervigilant to this day and will experience the impact of this incident for the rest of his life; and
The award is made from public funds.
AWARD
19The CICB orders payment as follows:
Subsection 7(1)(a) Expenses $ 2,630.19
Subsection 7(1)(a) Future Pre-Authorized Expenses $ 2,400.00
Subsection 7(1)(d) Pain and Suffering $ 15,000.00
TOTAL AWARD (AND COSTS) $ 20,030.19
Less: Preauthorized treatment costs $ 2,400.00
TOTAL CURRENT AWARD $ 17,630.19
PAYMENT
20THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $17,630.19
DATED at Toronto, Ontario this 30th day of November, 2017.
Kevin Cleghorn, Member