(Re) 1608-04542, 2018 ONCICB 10

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Kevin Cleghorn

Date: March 06, 2018

Indexed as: (Re) 1608-04542

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, medical expenses, treatment expenses, travel to treatment expenses and a loss of earnings award as a result of a shooting incident where he sustained physical/psychological injuries. The incident was reported to the Police and resulted in charges against the Offender of attempted murder, possession of a loaded firearm, discharge of a firearm with intent to wound, careless use of a firearm, pointing a firearm and weapon trafficking. The Offender was convicted of discharge of a firearm with intent to wound.

Decision

2The CICB approves the claim and awards the Applicant the sum of $11,500.00 for his pain and suffering 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:

• 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.

• 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.

• 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.

The Hearing

5The hearing was conducted in writing on the basis of the materials contained in the Applicant’s file. Following release of a short form Order, the Applicant has requested more fulsome written reasons for the original decision.

Documentary Evidence

6The CICB received the following documents with respect to the claim: a Police Questionnaire; Paramedic Service Report; Hospital Records, including Emergency Department Records, Surgery Records, Medical Notes, Operative Records, and Discharge Summary; Medical Report; X-Ray and Ultrasound Report; and print-outs from the Canada Revenue Agency of income tax information and assessments for the Applicant from years 2012 through to and including 2016.

Analysis and Decision

7For the following reasons the CICB grants the Application.

8The Applicant was out for a social evening with his son and other acquaintances on [date], 2016. The Applicant’s son became involved in a physical altercation with the Offender. The Applicant intervened to stop the altercation.

9The Offender left the scene. He then returned shortly thereafter with a firearm. The Offender discharged the firearm at point blank range at the Applicant. The Applicant was seriously wounded and was rushed by ambulance to the emergency department.

10The Offender eventually surrendered to the Police. He was charged with attempted murder, possession of a loaded firearm, discharge of a firearm with intent to wound, careless use of a firearm, pointing a firearm and weapon trafficking. Although not privy to the actual court documents and/or police reports confirming the outcome, the CICB was informed on September 6, 2017 that the Offender was convicted of discharge of a weapon with intent to wound and apparently sentenced to five years of incarceration.

11I 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/or the hospital records/reports. There is no information which suggests that the Applicant did anything to provoke the Offender in any real sense, but certainly nothing to warrant the extreme and violent reaction of that evening. I find that there is nothing in the behaviour of the Applicant which contributed to the infliction of the injuries he sustained on [date], 2016. The Police have confirmed that the Applicant was co-operative in the investigation of the incident and during the prosecution of the Offender.

12The extent of the injuries and cause of the injuries as outlined in the Application are consistent with the Applicant’s statements. The Applicant endured wounds to his left anterolateral shoulder, left posterior mid-back and mid-clavicular area, requiring surgical intervention. He further advises that he experienced injuries to his lungs and diaphragm. He also claims, albeit without the benefit of any therapy/psychological reports, that he fears for his safety and that of his son. The Applicant maintains that he now experiences shortness of breath, has difficulty eating, difficulty taking a shower, can only lift light objects and is unsure when he can return to work. He describes himself as working in construction; his income tax information discloses that he is a general contractor. It is unclear, however, how long he had pain and discomfort stemming from this incident and whether it persists to this day. It is unknown whether there are new consequences arising from this incident and what impact, if any, those have today. There is no indication that the Applicant has sought any therapeutic assistance for emotional/psychological injuries as CICB has not been provided with any reports or information to substantiate such injuries.

13The Applicant did not provide any specific information, or monetary amounts, in relation to his claims for medical expenses (prescription drugs), treatment expenses and/or travel to treatment expenses. He did not provide any original receipts/invoices/bills for any expenses that he may have incurred arising from this incident. On that basis, he cannot be compensated in relation to those categories.

14With respect to loss of earnings, there was no specific information verified by any physician as to the extent of time that the Applicant was scheduled to be off work, or was actually unable to work. His Doctor stated in his report that it was “unknown” if the patient was unable to work for a period of time.

15The Applicant was self-employed in the years leading up to the incident. He reported the following income earned in his income tax information submitted to the Canada Revenue Agency:

2012-$1

2013-$11,874

2014-$14,668

2015-$25,446

2016-$18,426

16The yearly average of his income earned for the years 2013 through to 2015 is $17,329. The yearly average of his income earned for the years 2013 through to 2016 is $17,603. In 2016, he exceeded his average income earned for the years preceding the incident based upon either calculation (since he earned $18,246 in 2016). In fairness to the Applicant, both calculations specifically exclude the 2012 calendar year and the likely anomalous earnings of that year. There is no information provided for income earned in either 2017 or 2018 year to date. As such, there is no basis for determining any actual loss of earnings experienced by the Applicant when considering the information provided to the CICB. There can be, therefore, no award made for loss of earnings in this instance.

17The 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 Offender caused the injuries sustained;

• The nature and extent of the injuries to the Applicant, which includes injuries to his lungs and diaphragm, fears for his safety and that of his son, shortness of breath, difficulty eating, difficulty taking a shower and the ability to lift light objects only;

• The injuries have undoubtedly interfered with the Applicant’s daily activities to this day, resulted in him missing an indefinite amount of time from work and causing him considerable pain and discomfort;

• The incident itself involved extreme violence, was horrific and shocking; and

• The award is made from public funds.

Award

18The CICB orders payment as follows:

Subsection 7(1)(d) Pain and Suffering $11,500.00

TOTAL AWARD (AND COSTS) $11,500.00

Payment

19THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $11,500.00