Criminal Injuries Compensation Board
Adjudicator: Kevin Cleghorn Date: July 11, 2018 Indexed as: (Re) 1705-01364
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 “CVCA”). The Applicant is seeking a pain and suffering award, medical expenses and treatment expenses as a result of a physical assault that occurred on [date], 2016 where she sustained physical and emotional injuries. The incident was reported to the police and resulted in charges against Alleged offender of two counts of assault and assault with a weapon. The Alleged Offender entered into a peace bond on [date], 2016 in relation to the Applicant and two other persons and all charges were withdrawn against her.
Decision
2The CICB approves the claim and awards the Applicant the sum of $2,000.00 for her pain and suffering for the reasons set out below.
Issues
3The absence of a conviction does not mean that the CICB is precluded from making an order of compensation. Subsection 16(1) of the CVCA provides that compensation may be awarded whether or not a person has been prosecuted or convicted of the offence giving rise to the injury. The 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 her injuries resulted from the crime pursuant to subsection 5 (a) of the CVCA.
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:
a) 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 CVCA.
b) 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 CVCA.
c) 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 CVCA.
Hearing
5The hearing was conducted in writing on the basis of the materials contained in the Applicant’s file.
Documentary Evidence
6The CICB received the following documents with respect to the claim: Court documents relating to the prosecution of the Alleged Offender, including the police information from the [name] Police Service, the recognizance to keep the peace and the peace bond; a letter from [name] dated [date], 2017; a letter from [name] undated; Hospital Records from the [name] Hospital; and a letter from the Applicant dated [date], 2018.
Analysis and Decision
7For the following reasons the CICB grants the Application.
8The Alleged Offender occupied the same apartment building as the Applicant. There was some history of ill feelings between the Applicant and the Alleged Offender. The Applicant had had abdominal surgery on [date], 2016 (commonly referred to as a “tummy tuck” operation). On [date], 2016, while sitting outside her unit with her friends [name] and [name], the Alleged Offender attacked the Applicant and her two friends without warning. The boyfriend of the Alleged Offender assisted her. [Name] attempted to protect the Applicant from being struck with a broom and/or rake by the Alleged Offender, taking the blow herself. The drainage tubes were clearly visible on the Applicant. The Alleged Offender was warned by the friends of the Applicant, or one of them, that the Applicant had had the surgical procedure recently. The two friends of the Applicant were struck in the attack, but the Applicant was not. The Applicant was forced to move suddenly to avert the attack.
9The Applicant reports that her stiches were ripped out as a consequence of the unprovoked and surprise attack. She indicates that she was in serious abdominal pain. Her skin was ripped and there was fluid build-up in her body. She reports that she has continuing fear of the Alleged Offender, who has subsequently made further threats to cause harm to her.
10The Alleged Offender was charged with two counts of assault and one count of assault with a weapon. The police information is that the Applicant was a witness in this matter but not a “victim”. All charges were withdrawn as against the Alleged Offender. She did enter into a peace bond (which named the Applicant specifically as a person to whom she must “keep the peace” toward) on [date], 2016
11I accept the Applicant’s version of the events as set out in her application insofar as the incident is concerned because all of the information provided is corroborated by the police information and the supporting letters from [name] and [name]. There are, however, no references in the medical records to confirm that complications arose following her surgery as a result of the incident itself. There are literally no references to the incident of [date], 2016 despite the Applicant attending for follow-up appointments with her physician in its immediate aftermath on [dates], 2016.
12The Applicant reports continuing discomfort and physical challenges of various kinds two years subsequent to the incident. There are no medical reports or hospital records which link the events of [date], 2016 with her current condition or with respect to her functioning in the immediate aftermath of the incident. The report of her physician dated [date], 2016 states “This [age]-year-old female is here status post abdominal pannus incision. Incision is clean, dry, and intact. No complications. I have changed the dressing.” Although there is a report dated [date], 2016 which describes one of her two drainage tubes coming out, there is no mention of that occurring as a result of the incident of [date] 2, 2016. Her physician reports “no major issues” on [date], 2016 and “no complications” on [date], 2016. It is difficult to understand why there would not have been an immediate attendance at the hospital on [date], 2016 if there had been serious medical complications arising from the events of that day.
13The Applicant reports that she has some fear and anxiety arising out of the incident of [date], 2016. She has not entered therapy nor has she indicated any future plans to seek therapy. Although the Applicant believes that physical injuries stemmed from the events of [date], 2016, there are no medical records to confirm any injuries or complications that can be specifically linked to the incident of that day. The complications from her surgery, and her current functioning, may be the unfortunate consequence of the surgery itself.
14The CICB finds the Applicant to be a victim within the meaning of subsection 5(a) of the CVCA as a result of the assault and the uttering of threats perpetrated by the Alleged Offender. I do not find, nor do I have any information to suggest, that the Applicant did anything to contribute to her injuries or failed to co-operate with the police authorities. I accept the Applicant’s description of the nature of her injuries but cannot conclude on the balance of probabilities that her abdominal issues specifically arise from the crime of violence.
15The Applicant has not provided any information or documentation to substantiate/explain any medical expenses and/or treatment expenses which arise from the incident of [date], 2016. As such, no award can be made for those claims for relief.
16The 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 Alleged Offender caused some injuries sustained by the Applicant;
The nature and extent of the injuries to the Applicant, which includes fearfulness, anxiety and depression as expressed by her;
That the Applicant was in a vulnerable position due to her surgery approximately ten days prior to the incident;
The injuries have interfered with the Applicant’s daily activities due to the emotional aftermath of the event, including interfering with her relationships and normal social life; and,
The award is made from public funds.
Award
17The CICB orders payment as follows:
Subsection 7(1)(d) Pain and Suffering $2,000.00
TOTAL AWARD (AND COSTS) $2,000.00
Payment
18The CICB orders that the following sums be paid forthwith to:
The Applicant $2,000.00
DATED at Toronto, Ontario this 11th day of July, 2018.
Kevin Cleghorn