CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: M. Saleem Akhtar
Indexed as: (Re) 1710-03143
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 compensation for pain and suffering for the physical and emotional injuries that she claims she sustained as a result of the physical assault committed against her on [date], 2017. The Applicant is also making incident-related loss of income claim.
Decision
2For the reasons set out below, the CICB approves the claim in relation to the assault committed against her on [date], 2017 by the Alleged Offender, as mentioned above, and awards the sum of $8,000.00 as compensation for pain and suffering.
3The CICB also awards $200.00 as loss of income incurred as a result of the assault.
Issues
4Pursuant to subsection 5 of the Act, the CICB must determine on a balance of probabilities,
- Whether a crime of violence occurred against the Applicant that caused injuries; and if so;
- The nature and extent of the injuries sustained;
- Whether compensation should be awarded and if so, determine the amount;
- Consider incident-related loss of income, as requested by the Applicant.
5In her Application before the CICB, the Applicant described the incident under the heading “Details of the Crime” as follows:
- On the evening of [date], 2017 I went to an event in …, but I later left to pick up my boyfriend [Name]. When I returned, the event was over. So I went to a restaurant…I then started receiving text messages and phone calls from the Alleged Offender (who is an acquaintance of mine) accusing me and my friend of stealing money from the event we have went to earlier. When I made them aware on the phone I did not bartend the event, I was blamed for allowing my friend to leave without giving money to [Name] who was managing the event…I continued to receive threatening messages. So I texted the Alleged Offender our location so that the issue could be resolved. The Alleged Offender then showed up with four other people and one of his friends shot me in the leg. I was then taken to the hospital by ambulance where I had to undergo surgery. I was hospitalized for about 2.5 weeks after the incident.
6In her Application, the Applicant described her injuries under the heading “Details of Injuries” as follows:
- In order for me to get around I have to use a walker or crutches due to the gunshot wounds to my leg. Because of that I have mostly been staying in bed. I have had over 50 staples on the left side of my leg, including my hip and inner thigh. I now have to have a brace on my leg. I am unable to shower myself, do cooking, cleaning or other daily tasks. I am unable to sit in a car, unless I lay flat. I have bruising on my leg. I have swelling from my hip to my knee, and I lose feeling daily in my toes. I am also unable to dress myself. I was hospitalized for two weeks and had multiple blood transfusions…I experience pain during tasks that I used to be able to do on a regular basis. I am unable to walk on my left leg for another 6-8 weeks, at which time I hope to be strong enough to begin physiotherapy. I have experienced fatigue and drowsiness as a result of the prescribed medications. I am unable to have any future MRIs due to remaining bullet fragments in my leg. I am under the impression from hospital staff that there were 2 bullets lodged in my leg, and possibly a 3rd bullet that severed my major vein causing severe bleeding…
- I am unable to attend schooling…I am also unable to hang out with my friends who are a major part of my support system. I have also been unable to work…I have been unable to sleep because of the incident…I have been experiencing flashbacks of the incident. I have a fear of going out after dark. I have been jumpy and hyper-vigilant since the incident…Emotionally, I feel as though this incident has taken away my independence…This has impacted my self-confidence…The stress from this incident has impacted my family…I am fearful that I will run into the accused. The problem is that I didn’t even know what he looks like. It has also been stressful for my relationship with my boyfriend…
7Police Report on file:
- After due investigation, the Police laid charges of aggravated assault and assault with a weapon contrary to the provisions of sections 268 and 267 respectively of the Criminal Code of Canada, RSC 1985, c.C-46. The matter is still pending before the Courts.
Analysis and Decision
8With respect to incident of assault and aggravated assault alleged by the Applicant to have occurred on [date], 2017, the fact that there has not been a conviction is not fatal to the Applicant’s claim.
9Section 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.
Crime of Violence
10The CICB must determine on a balance of probabilities if the Applicant is a victim of violent crime under subsection 5 of the Act. This section provides that the Applicant’s injury must have resulted from a “crime of violence” constituting an offence against the Criminal Code of Canada, RSC 1985, c.C-46.
11In 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. The standard of proof in cases before the CICB is “on a balance of probabilities.” Clear, cogent and convincing evidence is required to satisfy the standard of proof. In essence, the CICB must determine whether the Applicant’s allegations regarding the incident are substantially the most probable version of events to have occurred. The CICB must not consider the Applicant’s evidence in isolation; rather, the CICB is required to assess the totality of the evidence presented.
12Under the legislation, it is the CICB that is required to decide whether a relevant offence, “a crime of violence”, has taken place. It is for the CICB to decide the matter, on the evidence adduced before it, and upon proper construction of its statutory mandate.
13After reviewing the evidence in its totality including the Applicant’s submissions, Police investigation and Treatment Reports, the CICB finds the Applicant, on a balance of probabilities, to be a victim of a crime of violence within the meaning of and pursuant to subsection 5(a) of the Act.
Nature of Injuries
14The Applicant claimed that she sustained both physical and psychological injuries resulting from the assault committed against her by the Alleged Offender on [date], 2017. The Applicant’s account of her injuries has already been described in paragraphs 8 and 9 of this Order.
15In support of the Applicant’s injuries claim, she has submitted treatment and/or assessment reports from Hospitals and her Family Physician as well as a letter of support from Victims Services Co-ordinator. These Reports corroborate the Applicant’s version of her injuries. The CICB accepts these Reports for the purpose of compensation in this matter.
Compensation
16In 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.
17As 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.
18Based upon a careful review of the documentation on file, the CICB finds the Applicant not only a victim of a crime of violence within the meaning of and pursuant to subsection 5(a) of the Act but also accepts that she sustained injuries, as claimed by her in her Application.
19In assessing compensation for pain and suffering, the CICB has considered:
- The nature of the assault causing injuries;
- The possible emotional / psychological impact of the assault;
- The ongoing impact on the Applicant’s overall health, relationships and productivity.
20It 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 10629 (ON CTGD), 1995 OJ 1464 (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 is mindful that the awards are not paid by the wrongdoer as would be the case if an applicant pursued compensation through a civil action. The CICB also considers previous awards made by it in similar fact cases/situations in order to determine a reasonable amount of compensation.
21After reviewing the evidence in its totality, and having regard to all of the above mentioned circumstances of this case as well as considering previous awards made by the CICB in similar fact cases/situations in order to determine a reasonable amount of compensation, and to maintain consistency across the CICB, the CICB awards the Applicant $8,000.00 as compensation for pain and suffering.
Loss of Income
22The CICB has considered the Applicant’s claim in respect to loss of income in the amount of $364.80 for the period between [date], 2017 and [date], 2017. It is the CICB’s practice to reimburse income loss to a maximum of $50.00 per day and having considered the particular circumstances of this case, the CICB finds no compelling reason to deviate from that practice. Accordingly, the CICB now awards $200.00 for income loss (4 days x $50.00 per day = $200.00)
Expenses
23The CICB has considered the Applicant’s claim in the amount of $45.00 as ambulance costs, for which proof of out-of-pocket expenses was not provided. 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 or public funds. In the absence of such evidence, and having found no compelling reason to deviate from its usual practice in this instance, the CICB denies this part of the claim.
Award
24The CICB now orders payment as follows:
Section 7 (1) (d) Pain and Suffering $ 8,000.00
Section 7(1) (b) Loss of Income $ 200.00
TOTAL CURRENT AWARD: $ 8,200.00
25The CICB recognizes that no amount of money can adequately compensate applicants for the injustice they have suffered but also finds the amount of the award to be reasonable within the context of the Act.
Payment
26THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $8,200.00
DATED at Toronto this 28th day of May, 2018.
_______________________________
M. Saleem Akhtar, Member