CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Kevin Cleghorn
Indexed as: (Re) 1604-03174
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], 2014 where he claims to have sustained physical/psychological injuries. The incidents were reported to the Police and resulted in charges against the Alleged Offender of utter threats, assault and assault with a weapon. The Alleged Offender was subject to a diversion program and upon completion of diversion, the charges were withdrawn.
DECISION
2The CICB approves the claim and awards the Applicant the sum of $5,000.00 for the reasons set out below.
ISSUES
3The absence of a conviction does not mean that the CICB is precluded from making an order of compensation. Subsection 16(1) of the Act provides that compensation may be awarded whether or not a person has been prosecuted or convicted of the offence giving rise to the injury. The Applicant is required to prove, on a balance of probabilities, not only that he was a victim of a crime of violence but also that his injuries resulted from 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 questionnaire and summary of incident dated [date], 2016; hospital records from [Name] Hospital and hospital/surgical records from [Name] Hospital.
ANALYSIS AND DECISION
6For the following reasons the CICB grants the Application.
7The Applicant was enjoying a celebration in 2014 at his home with various friends. The Alleged Offender arrived at the Applicant’s home at 10:00 p.m., uninvited, in an inebriated state. The Alleged Offender was agitated and made various racist and threatening remarks toward the Applicant. The Alleged Offender was known to the Applicant as simply another resident of his housing complex.
8Without provocation, the Alleged Offender picked up a paving stone and threw it at the Applicant. The Alleged Offender was restrained by the other guests before he fled from the scene. The Applicant was brought to the [Name] Hospital by a friend for treatment of the injuries sustained in the incident.
9The Applicant was treated at [Name] Hospital for non-life threatening injuries. He experienced a laceration to his left elbow and a serious abrasion/bruising to his chest wall. He was in considerable pain and discomfort.
10The Applicant eventually required surgery (a “bursectomy”) to his left elbow. He reports tinnitus, or a noise/ringing, in his left ear subsequent to the incident. There is no indication in any medical reports of a linkage between the tinnitus experienced by the applicant and the incident per se, but there are objective findings made by Dr. [K] of the hearing loss reported by the Applicant. There is no suggestion made by the Applicant, nor any formal reports, of any subsequent psychological injuries experienced by him.
11The Alleged Offender was charged with utter threats, assault and assault with a weapon. While the Alleged Offender was charged, he was permitted to enter into a diversion program and upon completion of the program; it appears his charges were withdrawn. Despite there not being a conviction, there is sufficient evidence to prove on a balance of probabilities that a crime of violence occurred. This conclusion is based on uncontradicted and consistent evidence from the Applicant, the Police information, and the Hospital reports.
12The Applicant co-operated with the [Name] Police Service in the reporting and investigating of this matter. He was not required to appear in court on the basis of the arrangement negotiated between the Crown and the Alleged Offender.
13I accept the Applicant’s explanation of the events as set out in his Application because all of the information provided is corroborated by the police information and medical records/reports received by CICB.
14The Applicant has been impacted and injured by a crime of violence. He did not behave in any way to contribute to his injuries. He co-operated fully with the authorities to the extent required of him.
15The CICB finds the Applicant to be a victim within the meaning of subsection 5(a) of the Act as a result of the act of assault perpetrated by the Alleged 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 medical and police documentation.
16The CICB has considered the following factors in coming to its decision on the amount of the pain and suffering award:
The actions of the Alleged Offender caused the injuries sustained;
The nature and extent of the injuries to the Applicant;
The injuries have interfered with the Applicant’s daily activities to some degree and caused him pain and distress for months after the incident;
The Applicant required surgical intervention for his left elbow; and
The award is made from public funds.
AWARD
17The CICB orders payment as follows:
Subsection 7(1)(d) Pain and Suffering $5,000.00
TOTAL AWARD (AND COSTS) $5,000.00
PAYMENT
18THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $5,000.00
DATED at Toronto, Ontario this 20th day of December, 2017.
Kevin Cleghorn, Member