CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Kevin Cleghorn Date: December 18, 2017 Indexed as: (Re) 1603-02766
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, loss of wages/income and legal costs as a result of a physical assault (a stabbing incident) that occurred on [date], 2016 where he sustained physical and emotional injuries. The incident was reported to the police and resulted in charges against the Offender of assault with a weapon and breach of recognizance. The Offender was convicted of assault with a weapon and breach of recognizance on [date], 2016.
DECISION
2The CICB approves the claim and awards the Applicant the sum of $7,500.00 for his pain and suffering, $385.46 for his loss of wages/earnings and $630.00 for legal costs and disbursements 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: Hamilton Spectator newspaper article about the incident dated[date], 2016; Emergency Department Records from [Name] Children’s Hospital; Medical Records from Dr. [Name]; Medical Report from Dr. [Name] dated [date], 2016; E-mail from [Name] Police Service dated [date], 2017; Case File Synopsis of [Name] Police Service; Therapy Report of [Name] dated [date], 2016; Employer’s Report dated [date], 2016; Applicant’s Written Submission; Photographs of the Applicant in Hospital after the incident; Victim Impact Statement of Applicant dated [date], 2016; [Name] Police Service community news release dated [date], 2016; [Name] Modeling Agency web site page; and receipts for the disbursements incurred by Counsel.
ANALYSIS AND DECISION
7For the following reasons the CICB grants the application.
8The Applicant was a high school student at the time of the incident. He was on the school bus. The Offender moved from his seat to sit beside the Applicant. The Offender pulled out a knife and stabbed the Applicant in the left thigh. He attempted to stab the Applicant again but missed. The Offender walked off the bus and toward the school.
9The Applicant was in considerable pain and limped off the bus. The vice-principal of his school attended to the Applicant. The bleeding from the wound was dealt with by rudimentary first aid. The Applicant was taken by ambulance to [Name] Children’s Hospital. The wound was cleaned and stitched at the Hospital. The Applicant had one follow-up visit with his Family Physician, Dr. [Name], and one appointment with a Mental Health Therapist, [Name], after the incident. Although his injury was not life-threatening, it was painful and potentially serious. It left a permanent scar on the thigh of his left leg.
10The Applicant advises that his activities, particularly soccer, were restricted for several weeks after he was stabbed. He was off work from his regular, part-time job at [Name] from [date], 2016 to [date], 2016 (his Employer reports a net loss of income in the amount of $385.46). He has also worked as a model and is fearful of the impact on his career of the permanent scar. The Applicant has been embarrassed at school by the insensitive and inappropriate comments of his peers. He is now angry, not trusting of other people, avoids public buses, is constantly fearful, has nightmares, experiences mood swings and thinks of the incident often (particularly when observing the scar on his leg).
11The Offender was eventually charged with assault with a weapon and breach of recognizance. The Offender was convicted on all 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 by the Applicant according to the Applicant and the documentation provided. [Name] Police Service confirmed to CICB by email on [date], 2017 that this incident occurred through no fault or actions on the part of the Applicant. 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, Medical Reports and Therapy Report.
14Counsel for the Applicant has incurred costs for disbursements (records from Dr. [Name]- $150.00; photocopies from Dr. [Name]-$30.00; and photocopies from Dr. [Name]- $50.00) and will be reimbursed for those costs confirmed by actual receipts. There will also be an award of a Counsel fee of $400.00.
15There was reference in the Application to costs for the ambulance ($45.00) and costs of physiotherapy/chiropractic/massage ($278.00) being incurred by the Applicant or a family member on his behalf. No receipts were provided and accordingly no reimbursement for those expenses will be awarded. The file included a report from a Chiropractor, Dr. [Name]. It is wholly unclear, however, what the Applicant was being treated for, and how chiropractic treatment related to his stab wound.
16The Applicant has had one attendance with a Mental Health Counsellor. He has not requested in his Application a contribution for future therapy costs, despite referencing the emotional fall-out of this incident and its aftermath.
17The CICB further awards $385.46 for income loss (2 weeks at $192.73) per week.
18The CICB has considered the following factors in coming to its decision on the amount of the pain and suffering award:
The violent criminal actions of the Offender caused the injuries sustained;
The nature and extent of the injuries to the Applicant, which include significant pain and discomfort arising from the wound to his left thigh. He had discomfort and pain for several weeks and restrictions on his regular activities. 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, has fear about the impact of all of this on his future and will likely 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)(b) Income Loss $ 385.46
Subsection 7(1)(d) Pain and Suffering $7,500.00
Section 22 Costs $ 630.00
TOTAL AWARD (AND COSTS) $8,515.46
PAYMENT
20THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $7,885.46
The Morris Law Group $ 630.00
DATED at Toronto, Ontario this 18th day of December, 2017.
Kevin Cleghorn, Member