CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Kevin Cleghorn
Indexed as: (Re) 1705-01484
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], 2016 where he sustained physical injuries. The incident was reported to the police and resulted in a charge against the Offender of assault and aggravated assault. The Offender was convicted of assault on [date], 2016.
DECISION
2The CICB approves the claim and awards the Applicant the sum of $5,000.00 for his 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 only 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 meets this threshold, in deciding whether or not to exercise our discretion to award compensation and in what the amount, 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: Offence Detail Report from [Name] Police Service; Occurrence Report from [Name] Police Service; Emergency Department Medical Records from [Name] District Hospital; Ambulance Call Report;Department of Diagnostic Imaging Reports from [name] District Hospital; Day Treatment Records from [Name] District Hospital; and Victim Impact Statement.
ANALYSIS AND DECISION
7For the following reasons the CICB grants the Application.
8The Applicant was at [Name] Bar with his friend on [date], 2016. His friend was intoxicated and had an argument with two strangers. His friend left the bar and was attacked by the Offender and his companion in the parking lot with a snow shovel. The Applicant attempted to intervene on behalf of his friend and was similarly attacked with the (now broken) snow shovel. The Applicant was struck by the shaft of the shovel at least twice, resulting in injuries to his left arm and face.
9The Applicant and his friend were taken by ambulance to the [Name] District Hospital. He was treated at the hospital for a bruised and swollen left hand and a laceration to his forehead. He had two fractures, one on his left hand and another on his right hand.
10The Applicant experienced a dramatic impact to his lifestyle as he was unable to engage in his daily routine of physio and cardio training for eight weeks after the incident. His grip in his left hand has been seriously affected and he is, even now, unable to clench his hand fully. In addition, he now experiences pain in the location of the break on his left hand after activity. Although the grip on his right hand has been unaffected, he feels pain at the spot of the break which also increases with any activity. The Applicant also reports that he now has a permanent scar in the middle of his forehead.
11The information contained in the Police Records confirms that the Applicant co-operated with the Police in the investigation of this matter. CICB records establish that the Police were satisfied that the Applicant and his friend did not provoke the attack nor did anything to contribute to their injuries. The Offender was convicted of assault on [date], 2016.
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, as mentioned previously, was wholly unprovoked by the Applicant according to the Applicant and the documentation provided.
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. He claims that he had a fractured hand, a laceration to his forehead which required stitches and general bruising.
14The 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 fractures to his hands, the laceration to his head and bruises, ongoing problems with his left hand grip and pain at the point of the break on each hand;
The injuries have interfered with the Applicant’s daily activities to the extent that he could not participate in his regular workouts for weeks, he may have a permanent issue with function of his left hand and he is self-conscious about the scar on his forehead; and
The award is made from public funds.
AWARD
15The CICB orders payment as follows:
Subsection 7(1)(d) Pain and Suffering $5,000.00
TOTAL AWARD (AND COSTS) $5,000.00
PAYMENT
16THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $5,000.00
DATED at Toronto, Ontario this 30th day of November , 2017
Kevin Cleghorn, Member