CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Kevin Cleghorn
Indexed as: (Re) 1703-00893
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 travel to treatment expenses as a result of a robbery that occurred on [date], 2016 where he sustained physical and emotional injuries. The incident was reported to the Police and the investigation is ongoing. No charges have been laid against any person to date.
DECISION
2The CICB approves the claim and awards the Applicant the sum of $7,500.00 for his pain and suffering and $604.80 for travel to treatment expenses 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 the 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.
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 also 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; and,
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: E-mail from [Name] Regional Police Service dated [date], 2017; [Name] Regional Police Service Occurrence Report; Medical Records of Dr. [K]; Medical Report of Dr. [K] dated [date], 2017; Hospital Report from [Name] Hospital; [Name] Health Centre Visit Record History; Medical Report of Dr. [D] dated [date], 2017; Medical Records from [Name] Hospital; and Physiotherapy Report dated [date], 2017.
EVIDENCE
7The Applicant was a security guard for a trucking firm at the time of the incident. He was on duty on [date], 2016. Two Alleged Offenders with face masks (and possibly with weapons) entered the yard and overpowered the Applicant. He was duct taped to some degree and then locked inside an empty trailer. The Applicant injured his right hand/small finger while trying to extricate himself from the trailer. The Alleged Offenders removed two trailers from the yard, one of which contained television sets and the other of which stored tires. The two Alleged Offenders have not yet been identified.
8The Applicant was in considerable pain from his hand/finger injury. He received emergency treatment at the [Name] Hospital. A laceration on his right small finger was cleaned and sutured. He required surgery to repair tendon damage in that finger. The Applicant had to undergo physiotherapy for his finger for several months following the surgery, travelling on eighteen occasions to [Name] Hospital, a round trip of 84 kilometers each time. He received further physiotherapy in [City] from [date], 2017 to [date], 2017.
9He was off work from [date], 2016 until [date], 2017. He was compensated for his wage loss by the Workplace Safety and Insurance Board (“WSIB”). Following his physiotherapy, he has been advised to continue self-stretching for several more months.
10The Applicant advises that his activities were restricted for several weeks after the incident. He experienced significant trauma, high anxiety and flashbacks, particularly in the days immediately following the incident. He works at a different job site now. He was pressured to return to work early by both his Employer and WSIB despite surgery on his finger and the emotional aftermath of the incident.
ANALYSIS AND DECISION
11For the following reasons the CICB grants the Application.
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 Reports and the Hospital Records. Based upon the Police information and the statement of the Applicant, I accept and find that there was a crime of violence, in this instance forcible confinement and/or robbery. I also find that the injuries of the Applicant were a consequence of that crime of violence. The serious physical injury to the applicant’s finger, although occurring in the aftermath of the actual crime, would not have been incurred but for the crime of violence and the actions of the Alleged Offenders.
13The [Name] Regional Police Service confirmed to CICB by email on [date], 2017 that the Applicant’s behaviour did not contribute to his injuries and, in fact, “his co- operation probably minimized the extent of injuries that he could off (sic) suffered.” There is no indication that the Applicant was, or is, not co-operative with the police in the course of the investigation into this matter.
14CICB finds the Applicant to be a victim within the meaning of subsection 5(a) of the Act as a result of the actions of the Alleged Offenders. 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.
15Since the Applicant has received compensation for his wage loss through WSIB, there will be no award for loss of earnings in this instance, through the operation of section 17(3) of the Act. He did make eighteen trips for physiotherapy to the [Name] Hospital and will be reimbursed in the amount of $604.80 (eighteen trips multiplied by eighty-four kilometres multiplied by $.40 per kilometre).
16The 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 Alleged Offenders caused the injuries sustained, albeit indirectly;
The nature and extent of the injuries to the Applicant, which includes significant pain and discomfort arising from the wound to his right small finger. He had discomfort and pain for several weeks and restrictions on his regular activities, including an inability to work for approximately two months. He had nightmares, flashbacks and continuing fearfulness;
The incident has required the Applicant to change job sites; and
The award is made from public funds.
AWARD
17The CICB orders payment as follows:
Subsection 7(1)(a) Travel for Treatment Expenses $604.80
Subsection 7(1)(d) Pain and Suffering $7,500.00
TOTAL AWARD (AND COSTS) $8,104.80
PAYMENT
18THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $8,104.80
DATED at Toronto, Ontario this 20th day of December, 2017.
Kevin Cleghorn, Member