Re 1604-03281, 2018 ONCICB 39

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: M. Saleem Akhtar

Date: July 04, 2018

Indexed as: (Re) 1604-03281

ORDER

Introduction

1The Applicant is seeking financial compensation for the victim WC 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 pain and suffering compensation as well as incident-related expenses. The assault against the Applicant was committed by the Alleged Offender on [date], 2015, causing the Applicant serious injuries. The assault was reported to the Police. The Alleged Offender was charged with aggravated assault. However, later, he was found "not guilty" at the trial.

Decision

2For the reasons set out below, the CICB approves the claim for pain and suffering and awards the Applicant the sum of $12,000.00.

3The CICB also approves contribution in the amount of $13,000.00 in relation to medical treatment/assessments, assistive devices and travel to treatment and related expenses, as further explained in paragraph 25 of this Order.

Issues

4Pursuant to section 5 of the Act, the CICB must determine, on a balance of probabilities, whether a crime of violence occurred against the Applicant that caused him injuries, and if so, the nature and extent of the injuries sustained, and their impact on the day-to-day life of the Applicant.

5The 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 section 5 of the Act.

6Consider the Applicant's claims in respect to out-of-pocket incident-related expenses. The Applicant must provide reliable evidence to support his claims.

Written Hearing

7The hearing was conducted in writing on the basis of the evidence/materials contained in the Applicant's file with the CICB.

Documentary Evidence

8The CICB received the following documents with respect to the claim: Police Report dated [date], 2015, Hospital treatment reports, Speech-Language Pathologist, Functional Neurologist, Osteopath, Physiotherapist, Functional Oculo-Visual Report, ODSP worker's letter and others. The CICB also received Applicant's Lawyer's submissions and receipts and/or other proof of out-of- pocket expenses claimed by the Applicant.

9In describing details of the crime, the Applicant writes,

I was attending a party...when I was violently struck in the face by the Alleged Offender. I was knocked unconscious and I have no memory of the incident.

10In terms of his injuries, the Applicant writes,

As a result of this incident, I sustained severe head trauma requiring hospitalization for over a six-month period. I am currently unable to walk, talk or swallow. I am very weak and I have limited use of my hands and feet. I have vision problems, including an inability to focus my eyes. I, currently, require 24-hour a day care. I require special food, vitamins, and special clothing...

11As per Police Report, on record, the assault was reported to Police on [date], 2015. After due investigation, Police charged the Alleged Offender with aggravated assault contrary to the provisions of section 268 of the Criminal Code of Canada, RSC 1985, c.C-46. However, the Alleged Offender was found not guilty at the trial.

Analysis and Decision

12The CICB must determine on a balance of probabilities if the Applicant is a victim of violent crime under section 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.

13In 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.

14The fact that the Alleged Offender was found not guilty of the offence does not mean that the CICB is precluded from making an order for compensation. Section 16(1) of the Act provides that the CICB can make an order for compensation whether or not the person has been prosecuted for or convicted of the offence giving rise to the injury.

15Having considered all of the documentary evidence including Police Report, treatment/assessment reports, and the Lawyer's submissions, the CICB finds the Applicant to be a victim of aggravated assault and, therefore, a victim within the meaning of subsection 5(a) of the Act.

16Hence, the remaining issues to be decided by the CICB in this matter are as follows:

• The nature and extent of the injuries 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 incident-related expenses, as requested by the Applicant.

17The Applicant's injuries accruing from the assault, as described by him in his Application have already been described in paragraph 10 of this Order. In addition, his Lawyer has submitted that the Applicant has developed decreased frustration tolerance, experiences emotional outbursts, major depression, severe anxiety and suicidal ideation. The Applicant requires significant care on a regular basis and as such his quality of life is not good. He has neurological impairments stemming from his severe Trauma Brain Injury.

18In support of his injuries claim, the Applicant has submitted reports from different hospitals as well as from other health professionals, as already mentioned above. The CICB accepts these reports / documents for the purpose of compensation in this matter.

19In 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 Board, in accordance with natural justice. Sheehan and Criminal Injuries Compensation Board (1975), 1974 439 (ON CA).

20Based upon a careful review of the documentation, on file, the CICB finds the Applicant, on a balance of probabilities, not only to be a victim of a crime of violence (aggravated assault) within the meaning of and pursuant to subsection 5 (a) of the Act but also accepts that he sustained serious injuries, as a result thereof, as described above and as supported by medical reports/treatments. Therefore, the CICB has determined that the Applicant is compensable.

21In 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.

22It is important to note that the CICB has wide discretion to determine whether or not to award compensation to a victim 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 a victim for compensation whole or to provide full indemnity to a victim. The CICB is mindful that awards are paid using public funds. They are not paid by the wrongdoer as would be the case if a victim 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, and to maintain consistency across the CICB.

23After 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 $12,000.00 as compensation for pain and suffering.

24Pursuant to subsection 19(1)(a) of the Act, the maximum allowable award for lump sum payments is $25,000.00. Subsection 19(1)(a) reads:

19(1) the amount awarded by the Board to be paid in respect of the injury or death of one victim shall not exceed,

(a) in the case of lump sum payments, $25,000;

25Pursuant to subsection 7(1)(a) of the Act, the CICB may make an award for expenses that are "actually and reasonably incurred or to be incurred as a result of the victim's injury". The CICB has considered the Applicant's claim in the amount of $65,142.00, $6,551.00 and $3,389.00 in respect to medical treatment/assessments, assistive devices and travel to treatment expenses respectively. The CICB has considered this request in light of all the relevant circumstances, the nature and scope of the victim's injuries and the reasonable allocation of public resources. The CICB appreciates the Applicant's understanding that it "cannot address this level of out-of-pocket expenses". Given that the Applicant has already been awarded $12,000.00 for pain and suffering and the maximum allowable award for lump sum payments is $25,000.00, the CICB will, therefore, award the difference of $25,000.00 - $12,000.00 = $13,000.00 as a contribution towards the Applicant's out-of-pocket expenses claim. The details of this contribution are: $10,000.00 as a contribution towards the medical treatment/assessment, $2,800.00 for assistive devices and $200.00 for travel to treatment and related expenses. The CICB finds that the above amount ($13,000.00) constitutes a reasonable contribution towards out-of-pocket expenses arising from the crime upon which the Application was based. The CICB finds this amount to be reasonable within the overall context and intention of the Act and the specific circumstances of the Applicant.

26As stated above, the CICB has awarded the Applicant the sum of $25,000.00 in total for pain and suffering and out-of-pocket expenses. Since the CICB has issued the maximum allowable lump sum award, it cannot consider any further claims for compensation in respect of this incident.

27Should the Applicant be awarded compensation as a result of any civil action arising from this incident, the Applicant must notify the CICB immediately since the CICB is entitled to be reimbursed from those funds for any amount of compensation it has awarded to the Applicant, pursuant to subsection 26(5.1) of the Act, which states:

26 (5.1) The Board is entitled to be reimbursed, out of any amount recovered by the applicant from the offender or any other party, for the amount of compensation awarded to the applicant.

Award

28The CICB now orders payment as follows:

Subsection 7(1) (d) Pain and Suffering $12,000.00

Subsection 7(1) (a) contribution towards expenses $13,000.00

TOTAL CURRENT AWARD $25,000.00

29The CICB recognizes that no amount of money can adequately compensate victims for the injustice they have suffered but also finds the amount of the award to be reasonable within the context of the Act.

Payment

30THE CICB ORDERS that the following sums be paid forthwith to:

The Applicant $25,000.00