(Re) 1608-04416, 2017 ONCICB 54

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: M. Saleem Akhtar

Date: March 06, 2017

Indexed as: (Re) 1608-04416

ORDER

Introduction

1This is an Application seeking compensation for physical and emotional injuries arising from physical assault committed against him by the Offender in accordance with the Compensation for Victims of Crime Act, RSO 1990, c. C.24, as amended (the “Act”). The assault happened in the Province of Ontario.

Decision

2The CICB accepts the Applicant’s claim for compensation with respect to an assault committed against him on [date], 2015 by the Offender mentioned above.

Issues

3Pursuant to subsection 5 (a) of the Act, the CICB must determine on a balance of probabilities:

• Whether a crime(s) of violence occurred against the Applicant; and if so;

• The nature and extent of the injuries sustained;

• Whether compensation should be awarded and if so, determine the amount;

• Consider claim in respect of ambulance costs.

Evidence

4In his Application before the CICB, the Applicant describes the incident as follows:

I caught Bailey and his friend breaking into mine and my neighbour’s trucks. I followed them so I could tell the police where they went. When we got to the ball field, Bailey stopped and told me to stop following them or they would find me dead in the ditch and then he stabbed me between the shoulder and neck. Then, they ran away and left me there. I walked home with blood coming out…told my wife to call police and ambulance. The police showed up…

Police Report

5Police Report, on file, by and large, corroborates the Applicant’s version of the incident. The Report adds that the knife wound sustained by the Applicant was one and a half inches long and approximately four inches deep.

6The Offender was charged with and convicted of Assault Cause Bodily Harm contrary to section 267(b) of the Criminal Code of Canada RSC 1985, c.C-46.

Injuries

7The Applicant claims that he sustained a stab wound to left shoulder with a residual permanent scar. Since the assault, he has become hyper-vigilant and keeps looking over his shoulders most of the time, particularly when he is around teens and/or is in a big gathering. He is scared of knives. He lost a potential job because he could not start the job until his injuries were healed. The Applicant claims that he saw a therapist for about one month after the assault, but he has not provided any therapy/treatment report.

Analysis and Decision

8The CICB must determine on a balance of probabilities if the Applicant is a victim of violent crime under subsection 5(a) of the Act. This subsection provides that the victim’s injury must have resulted from a “crime of violence” constituting an offence against the Criminal Code of Canada. In this claim, the CICB must be able to conclude that the Applicant was probably injured as a result of an intentional assault as opposed to being injured in some other way.

9Section 11 of the Act provides that proof of conviction shall serve as conclusive evidence that the offence has been committed. Therefore, in light of section 11 of the Act, there is no question that the Applicant was a victim of a crime of violence (Assault Cause Bodily Harm) involving the Offender as proven through the conviction described above.

10Hence, the remaining issues to be decided by the CICB in this matter are as follows:

• The nature and extent of the physical and emotional/psychological injuries sustained by the Applicant as a result of the foregoing assault, and

• Having regard to the relevant circumstances, whether compensation should be awarded and, if so, determine the amount.

• Consider claim in relation to ambulance costs.

11The Act gives the CICB broad discretion to determine whether compensation ought to be awarded in any given case and, if so, determine the amount. Awards from the CICB are paid using public funds. They are not paid from the wrongdoer as would be the case if a victim pursued compensation through a civil action.

12In every case before it, the CICB is required to determine what the relevant circumstances are and to decide whether to grant or deny compensation having regard to those circumstances on a balance of probabilities. There is no automatic right to compensation under the Act. There is only a right to apply for compensation, which may be granted or refused at the discretion of the CICB in accordance with natural justice. Sheehan and Criminal Injuries Compensation Board (1975), 1974 439 (ON CA), 5 O.R. (2d) 781.

13As such, not all injuries warrant compensation. As was noted by the Divisional Court in Pitters v. Ontario (Criminal Injuries Compensation Board), [1996] O.J. No. 4339 (Div. Ct):

The nature of the dispositive authority conferred upon the Board by the Act evidences a legislative intention to accord to the Board a substantial measure of discretion. Under section 5 of the Act, the Board "... may make an order that it, in its discretion exercised in accordance with this Act, considers proper." The breadth of the statutory discretion is underscored by the use of the permissive "may" and "in its discretion". The only substantive qualifier on the exercise of discretion by the Board is that it must be “in accordance with this Act". No enumerative list of factors informs the exercise by the Board of its discretion.

14Section 5 of the Act states:

The Board, on application therefor, may make an order that it, in its discretion exercised in accordance with this Act, considers proper for the payment of compensation to,

(d) the victim

15In Skunk v. Criminal Injuries Compensation Board, 2006 11440 (ON SCDC), and Dugas v. Criminal Injuries Compensation Board, 2009 29192 (ON SCDC), the Divisional Court confirmed that the CICB has a wide measure of factual discretion and broad discretion in awarding compensation under the Act.

16The Divisional Court commented in the Pitters decision at para. 12:

The Act provides statutory authority for the award of compensation to victims of crime. Payment is not made ex gratis. It is made only to persons who are eligible for compensation under the statute. The legislature did not furnish the Board, however, with a blank cheque. It is not every injury, loss or expense suffered by a victim of crime which is compensable under the Act.

17The CICB sent two letters to the Applicant on September 09, 2016 and December 23, 2016 advising him to provide all relevant treatment related documentation. As of the date of this hearing, the Applicant has not submitted any such reports.

18In the absence of any latest/current incident related treatment documentation, it is difficult, if not impossible, to gauge the extent of the impact that the assault might have had on the day-to-day life of the Applicant. Despite that, the CICB understands that such traumatic incidents do leave emotional scars on victims’ minds, at least to some degree.

19Based upon a careful review of the documentation on file, the CICB finds the Applicant not only a victim of a crime of violence (Assault Cause Bodily Harm) in relation to the Offender within the meaning of and pursuant to subsection 5(a) of the Act but also accepts that he sustained both physical and emotional injuries, as described by him in his Application.

20In assessing compensation for pain and suffering, the CICB has considered:

• The nature of the incident and the extent of physical injuries;

• The emotional / psychological impact of the assault, as discussed above;

• Any ongoing impact on the Applicant’s overall health, relationships and productivity.

21It is important to note that the CICB has wide discretion to determine whether or not to award compensation to an applicant from public funds (Leung v Ont. (Criminal Injuries Compensation Board) 1995 Carswell (Div, Ct) at para 5). The Act is not intended to make an applicant for compensation whole or to provide full indemnity to an applicant. The CICB also considers previous awards made by it in similar fact cases/situations in order to determine what is considered a reasonable amount of compensation.

22After reviewing the evidence in its totality and having regard to all of the above mentioned circumstances of this case, and in light of the fore-going considerations, as well as considering previous awards made by the CICB in similar fact cases/situations in order to determine what is considered a reasonable amount of compensation, the CICB awards the Applicant $8,000.00 as compensation for pain and suffering.

23The CICB has considered the Applicant’s claim in the amount of $85.00 in respect to ambulance costs. The CICB generally requires original receipts and/or other supporting documentation for any expenses that are claimed, both to verify the amount claimed and to confirm that such costs were not covered by other sources, such as private insurance. In the absence of such evidence, and having found no compelling reason to deviate from its usual practice in this instance, the CICB denies the expense claim for ambulance costs.

Award

24The CICB ORDERS payment as follows:

Section 7(1) (d) Pain and Suffering $8,000.00

TOTAL CURRENT AWARD: $8,000.00

25The CICB recognizes that no amount of money can adequately compensate victims for the injustice they have suffered but also finds the amount of this award to be reasonable within the context of the Act.

Payment

26THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $8,000.00