Re 1601-02174, 2017 ONCICB 381

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Keith Forde

Date: December 28, 2017

Indexed as: (Re) 1601-02174

ORDER

INTRODUCTION

1The Applicant is seeking compensation from the Criminal Injuries Compensation Board (CICB) pursuant to section 5(a) of the Compensation for Victims of Crime Act, RSO 1990, c. C.24, as amended (the “Act”).

2The Applicant is seeking compensation for pain and suffering for physical and psychological injuries as a result of an alleged assault perpetrated by the Alleged Offender on [date], 2015 in [City].

3The [Name] Police Service investigated the incident and no charges were laid against the Alleged Offender.

4The CICB denies compensation to the Applicant on the grounds that the Applicant first assaulted the Alleged Offender who retaliated in self-defence.

ISSUES

5The Applicant is required to prove, on a balance of probabilities, not only that she was a victim of a crime of violence, but also that, as a result of this crime of violence committed against her, she suffered injuries pursuant to section 5(a) of the Act. If she meets this test the CICB must assess all relevant circumstances to decide whether compensation should be awarded and, if so, the amount.

EVIDENCE

Applicant’s Evidence

6The Applicant appeared at the hearing and gave the following sworn testimony:

a. This incident involves a [Name] streetcar operator (the Applicant) and a 16 year old passenger (the Alleged Offender). The circumstances surrounding this incident are as follows.

b. The Applicant is employed by the [Name] and was operating a streetcar on the day in question along [Street]. Because of electrical difficulties, the Applicant detoured southbound to [Street]. As a result, the Applicant made several announcements to the passengers of the change in route.

c. The Alleged Offender was a passenger on the Applicant’s streetcar and when she observed that the streetcar had changed route, she approached the Applicant and asked for a transfer.

d. The Applicant testified that the Alleged Offender got into her face. She was aggressive, swearing and freaking out.

e. The Alleged Offender accused the Applicant of not announcing the detour and demanded a transfer.

f. The Applicant said that she was afraid and stopped the streetcar at [location] and asked the Alleged Offender to get off. At this time the Alleged Offender got closer in the Applicant’s face.

g. The Applicant said that, without provocation, the Alleged Offender swung at her and she immediately closed the streetcar door. The Alleged Offender then grabbed the Applicant by her hair, yanked her down the stairs, across the street and tried to get her to the ground.

h. The Applicant said that an unidentified person intervened and got Alleged Offender off her thus affording her time to return to the streetcar. The Alleged Offender then followed the Applicant back on the streetcar and attempted to dislodge the fire extinguisher. When she was unable to do so she grabbed the switch iron and tried to swing it at the Applicant. Again an unidentified person was able to wrestle the switch iron from the Alleged Offender’s arm.

i. The Police were called and attended the scene and commenced an investigation. Three months after the incident, the Police called the Applicant and told her that no charges would be laid.

j. The Applicant testified that she never asked the Police why no charges were laid against the Alleged Offender.

Testimony of the Police Witness

7The Police Witness attending the hearing and gave the following sworn testimony:

a. The Police Witness is a detective constable with [Name] Police Service with eleven years’ experience. He was the lead investigator in this incident.

b. The Police Witness said that the streetcar was equipped with video surveillance. The Alleged Offender also gave a video statement. He wanted to view them first before making a decision because the Applicant and the Alleged Offender gave conflicting statements at the scene.

c. The video surveillance showed that the Alleged Offender approached the Applicant and engaged her in a conversation which escalated. The Applicant refused to give the Alleged Offender a transfer ticket. The Applicant stopped the streetcar and ordered the Alleged Offender off. The Alleged Offender grabbed a transfer ticket and began to exit the streetcar when the Applicant using her right hand, pushed her down two flights of stairs off the streetcar. The Alleged Offender stumbled but did not fall.

d. The Alleged Offender was upset and ran back on the streetcar and attempted to punch the Applicant; however, she did not connect. At this time both the Applicant and the Alleged Offender engaged in a physical struggle in the streetcar which eventually ended up with the Alleged Offender pushing the Applicant off the streetcar and onto the sidewalk for the second time.

e. The video surveillance showed the struggle on the sidewalk and another TTC employee coming into view of the camera to assist the Applicant. The video also showed the Alleged Offender pulling the Applicant’s hair when the TTC employee was able to separate the Applicant and the Alleged Offender.

f. At this time the Applicant re-entered the streetcar and the Alleged Offender followed her in and again attempted to pull her hair and again the TTC employee intervened and separated them.

g. The video surveillance showed the Alleged Offender attempting to grab the switch iron and the TTC employee preventing her from grabbing the switch iron. It was at this time that the police officers arrived.

h. The Police Witness said that no charges were laid against the Alleged Offender because their investigation showed that the Applicant was the perpetrator of the incident by assaulting the Alleged Offender first. The Police Witness explained to the Applicant that if the Alleged Offender came forward and wanted criminal charges laid against her, that she could be charged.

i. The Police Witness testified that the Alleged Offender did not use excessive force and fought back in self-defense. Hence no charges against the Alleged Offender would be laid.

8The Applicant also provided the CICB various documents in support of her claim.

9The Applicant was seen by her Family Physician, [Name], complaining of neck, back and shoulder pain and distress from the incident. The report also noted that the applicant saw a Dr. [Name] on [date], 2015 at a walk in clinic. At this time the Applicant was diagnosed with soft tissue injury and muscle spasms and was referred to see a chiropractor and a psychologist for further treatment.

10The CICB was also in receipt of a chiropractor’s report from [Name] of [Name] who noted that the Applicant presented with neck, facial, upper back and lower back injuries. The report also noted that the Applicant developed Bell’s palsy three months after the incident.

11The CICB was in receipt of a therapy report from Psychologist, [Name], who noted that after the incident, the Applicant suffered from sleep impairment, flashbacks of the incident, and hyper-vigilance. He also noted that the Applicant's prognosis for full recovery was good.

Injuries

Physical

12The Applicant noted in her Application to the CICB that as a result of the incident she suffered the following: severe pain in neck, back and shoulders; headache, blurry vision and light sensitivity within 2-3 hours after incident.

13The Applicant testified at her hearing that she was still experiencing the following physical injuries: severe pain in neck, back and shoulders, frequent headaches and Bell’s Palsy from the severe trauma of the incident and she believes that the Bell’s Palsy is related to her neck injury.

Psychological/Emotional

14The Applicant noted in her Application that as a result of the incident, she suffered from acute anxiety, poor concentration, became hyper-vigilant and is fearful of being attacked again.

15The Applicant testified that she thinks about the incident daily and becomes anxious when she does. She said that she has not operated a streetcar since the incident and that her anxiety was brought on as a result of the incident. The applicant no longer works with the public, is afraid of the Alleged Offender and took a pay cut as a result of the incident.

ANALYSIS

16The fact that there has not been a conviction is not fatal to the Applicant’s claim. Section 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 or death.

17Notwithstanding this, for the following reasons the CICB is unable to find, on a balance of probabilities, that the Applicant was a victim of a crime of violence and therefore, a victim within the meaning of section 5(a) of the Act.

18The CICB finds the Applicant’s testimony to be unreliable and not credible given that her account of the incident varied so much from the streetcar video surveillance which captured the entire incident between her and the Alleged Offender. In particular, on the issue of who assaulted who first, the Police Witness testified that the video surveillance clearly supported the Alleged Offender’s account that she was physically pushed off the TTC streetcar forcibly by the Applicant. Therefore the Applicant assaulted the Alleged Offender first and started the physical altercation.

19The CICB finds that the Alleged Offender acted in self-defense in the circumstances and did not use unreasonable force in doing so.

20As a result, the Applicant’s claim is denied.