CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Christine McGoey
Indexed as: (Re) 1802-00547
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, R.S.O. 1990, c. C.24, as amended (CVCA). The Applicant is seeking pain and suffering and treatment expenses as a result of physical assaults that occurred between [date] and [date], 2017, where he sustained both physical and psychological injuries. The incidents were reported to the police and resulted in convictions for Offenders 1 and 2. Alleged Offender 3 entered into a peace bond.
Decision
2The CICB approves the claim for the reasons set out below.
Issues
3Offenders 1 and 2 were convicted of assault. A conviction may be taken as conclusive evidence that an offence has been committed pursuant to section 11 of the CVCA.
4Alleged Offender 3 entered into a peace bond in relation to this matter. He admitted to Police he made a mistake. The assault charge was withdrawn. The 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 he was a victim of a crime of violence, but also that his injuries resulted from the crime pursuant to subsection 5(a) of the CVCA.
5The Applicant must provide reliable evidence to support his claims for expenses actually and reasonably incurred as a result of his injury pursuant to subsection 7(1)(a) of the CVCA.
Hearing
6The Applicant filed a Notice of Motion seeking to have the three occurrences relating to assaults by Offenders 1 and 2 heard together in one hearing, and a separate hearing relating to the incident involving the Alleged Offender. The Notice of Motion was dealt with at the outset of the electronic hearing. In the course of the motion the Applicant agreed that both Applications could be heard during the same hearing, with the crimes of violence relating to the Offenders 1 and 2 being treated as one occurrence and the alleged offence relating to Alleged Offender 3 being treated as a separate occurrence. Recognizing that they are to be treated separately as indicated, the CICB has combined the matters into a single Order, with the awards relating to each Application are set out below.
7The Applicant sought to vary an Interim Order which provided for dental expenses based on more recent information. The Applicant agreed to have that matter dealt with in the course of the hearing.
8The applicant provided oral testimony by phone.
Documentary Evidence
9The CICB received the following documents with respect to the claim: the Application outlining the details of the offences and injuries; updating emails from the applicant; court documents relating to the Offenders and Alleged Offender; a letter from the Applicant’s girlfriend, providing corroborating information with respect to the Applicant’s account of events and injuries; OPP Police Reports; Dental Reports from Dr. [name] dated [date], 2018 and Dr. [name]; and a Medical Report from Dr. [name], the Applicant’s Family Physician, dated [date] , 2018.
Oral Evidence
10The Applicant testified about four occurrences which occurred over three days. In [month] of 2017, the Applicant was living in an apartment building in a small town in Ontario.
11The first incident involved one of his neighbours in the building, Offender 1. Late in the evening of [date], 2017 the Applicant went to Offender 1’s apartment to retrieve dishes the Offender had borrowed from him. Offender 1 was in a bad mood and under the influence of some kind of drug. He threatened the Applicant with a gun and slapped him forcefully in the face. The Applicant was terrified. He believed he would be killed. He managed to leave the apartment and hid in his apartment. He was unsure what to do and he had a headache as a result of the blow to his head. The Applicant took some sleeping pills and went to sleep.
12On the following morning, [date], 2017, the Applicant called the Police. The Police advised him they would attend his location and told him to stay by the phone. Shortly after the call, there was a knock at the Applicant’s apartment door. He looked through the peep hole and saw it was Offender 1’s brother, Offender 2. Offender 2 had been reasonable in the past and the Applicant hoped they might be able to resolve the problem from the night before. He opened the door and was attacked by both brothers. Offender 1 had been hiding to the side of the door. They began punching and kicking him. They told him he would be a rat if he reported it to the Police. The Applicant managed to hold onto the door frame and pull himself into his apartment and close the door.
13A short time later the Applicant got a call through the intercom from someone identifying themselves as a Police Officer. He was asked to come down to the lobby. The Applicant complied and once he reached the lobby he was attacked again by Offenders 1 and 2. They tried to drag him outside, out of camera view. They kicked and punched him and threatened to kill him. He was terrified that they would drag him to a nearby field and kill him using the gun he had seen the night before. He managed to grab onto something as they continued to punch and kick him. The superintendent of the building came out. Offender 2 told his brother to go upstairs and told the Applicant the Police would not do anything and that if he told the Police what happened he would shoot the Applicant himself. The Police arrived and the Offenders were arrested. The Applicant testified that his clothes were torn and he was bleeding. The Police documented blood on his shirt. He was shaking and in pain. He spoke with the Police about what had occurred.
14The Police viewed video footage and were advised by a worker at the building that he had also been threatened with harm by Offender 1 if he told police about the assault on the Applicant. While police were attempting to get Offender 1 into the cruiser his brother began to kick the rear passenger side window, causing some damage. A search warrant executed on Offender 1’s apartment on [date], 2017, resulted in a black pellet gun being seized.
15As indicated earlier, the fourth attack by another Offender will be treated as a separate occurrence. On [date], 2017, the Applicant left his apartment intending to get some Tylenol. Another neighbour, the Alleged Offender, approached him on a scooter from behind. The Alleged Offender got off the scooter. He was furious and punched the Applicant hard, in the face, causing him to stumble. He called him a rat and threatened to kill him. The Applicant went home to call the Police. Police attended and noted a small mark on his lower left chin. At the time the Applicant did not want medical attention. The Police located the Alleged Offender at a nearby restaurant and arrested him. The Alleged Offender admitted making a ‘mistake’ to Police.
Analysis and Decision
16For the following reasons the CICB grants the applications.
17The Applicant testified in a straightforward manner and portions of his evidence were corroborated by the Police Reports. Offenders 1 and 2 were both convicted of assault. The Alleged Offender 3, although not convicted of a crime of violence, entered into a peace bond as a result of the incident, and admitted to the police he made a ‘mistake’. The Police made note of blood on the Applicant’s shirt on their first attendance and a small mark on the side of his face on their second. This, in my view, satisfies the Applicant’s burden of showing on a balance of probabilities, that he was a victim of a crime of violence. I accept the Applicant’s evidence and find that he was the victim of four crimes of violence, three relating to the Offenders, involving threats, assaults and in the first by Offender 1, an imitation firearm, and one assault by the Alleged Offender.
Injuries
18The Applicant suffered a headache as a result of being slapped in the face by Offender 1 on [date]. Additionally, he had psychological injuries that resulted when an imitation handgun was pointed in his face. He was subsequently attacked twice the next day by both Offenders. He did not attend the hospital following these events, but he testified he did see his family doctor sometime later. When asked why he delayed seeking medical attention the Applicant indicated his level of fear was such that he didn’t want to leave his apartment.
19The Applicant indicated he had bruising, scratches, cuts and bumps as a result of the assaults. He also suffered a broken right wrist and a fracture to his other hand. The Applicant testified he received these injuries trying to protect himself during the assaults by the Offenders. He experienced pain to his torso and believes he suffered fractured ribs.
20His Family Physician confirmed he had broken his wrist; and suffered a carpal fracture to his left hand. He was prescribed a thumb splint for his right hand. The injuries to his hands were severe and significantly interfered with his ability to perform basic tasks. The Applicant was referred to a hand specialist, Dr. S., as he continued to experience a great deal of pain in both hands, although it had abated somewhat over time. At the time of the recent examination by Dr. S. the Applicant had full range of motion in both hands although he was experiencing some pain. Dr. S. recommended a wrist splint for the right hand and a hand splint for the left hand, as well physiotherapy. The Applicant will be reassessed to see if surgery is required following these treatments. He may experience arthritis in his hands as a result of these injuries.
21Following the attacks the Applicant has felt fearful, frustrated, angry and ashamed. He testified he suffered from nightmares, flashbacks, and depression, and has lost his confidence. He indicated he has difficulty concentrating and sleeping, and feels lethargic. He also stated he has suffered a decreased libido and experienced panic attacks. He continues to suffer migraines which he attributes to these attacks. The Applicant testified that his home-based business has suffered as a result of problems with concentration, memory and stamina due largely to an inability to sleep.
22The Applicant was hit by a motor vehicle some years before these incidents and was in critical condition as a result. He said these crimes felt more serious as they were deliberate and malicious. He indicated that they revived memories from when he lived in [outside Canada]. He has not received any therapeutic treatment, and hopes the CICB will be able to make an award for such treatment.
23The Applicant testified that as a result of being hit in the lower left side of his face by the Alleged Offender on [date] this right upper molar was fractured at the gum line. He also reported severe headaches which started after this attack and appeared to be related to the area. His psychological injuries were exacerbated by this attack.
24It is accepted by the CICB that the Applicant suffered physical and psychological injuries as a result of the attacks by Offenders 1 and 2. Two of the attacks involved both Offenders and were an attempt to dissuade him from calling the Police. While there was some delay in seeking medical attention, the fractures to the Applicant’s hands are documented and I accept that they occurred as a result of trying to block blows during these attacks. I also accept that he suffered bruising and cuts, headaches, and significant pain to his rib area, regardless of whether his ribs were broken. In addition, while the Applicant had experienced previous trauma in his life and the CICB does not have the benefit of a therapeutic report, I accept that there were significant psychological injuries which arose from these attacks. The brazen and repeated attacks, the involvement of an imitation firearm, and the threats by the Offenders served to terrorize the Applicant. He indicated in his testimony that the recent release of Offender 2 from custody has caused him to have a ‘nervous breakdown’.
25The Applicant’s case was presented in such a way that it is not possible for the CICB to establish exactly what injuries resulted from each of the occurrences. The evidence suggested that the significant emotional and psychological impact was cumulative. In the circumstances, in relation to the assaults by the Offenders the CICB awards the Applicant $11,000.00 for pain and suffering.
26With respect to the punch to the face by Alleged Offender I find, on a balance of probabilities that it caused the fracture to the Applicant’s tooth and headaches. I also find it contributed to his psychological injuries. In the circumstances the CICB awards the Applicant $5,000.00 for pain and suffering.
Expenses
27The CICB considered the Applicant’s claims for prescriptions ($99.96, and more recently, for a variety of items to deal with scarring and pain $50.26) and a splint for his thumb ($32.76) for which receipts were supplied and find such costs to be reasonable and will therefore make an award for these costs. The CICB also awards $85.00 for a Physiotherapy Assessment [date], 2018.
28The CICB ordered an interim award for the removal of the tooth and socket preservation which involved three appointments in [month] of 2018. The Applicant paid the treatment and was reimbursed by the CICB through an Interim Order for $501.00. At that time two options for further treatment were provided, one at a cost of $1,100.00, the other for $3,500.00. The Applicant was awarded a further $1,100.00 through an Interim Order to cover the costs of the first option. Those funds have not been utilized as a different dentist is now treating the Applicant and has proceeded with a third option which he recommended. The Applicant used a loan to begin the work required for that option which involved an implant and crown.
29The Applicant testified that he has been advised by Dr. G. there has been some bone loss in the area and sinus problems as a result of the injury. Prior to the hearing the Applicant received a letter from Dr. G., dated [date], 2018, which indicated that the preferred option was an implant with a supported crown. On [date], 2018, the Applicant submitted an invoice for work done and an estimate for further work to be done by Dr. G. on the tooth. The Applicant paid a total of $2,500 towards work which had been done. The invoice showed a balance owing of $618. The invoice then sets out a further amount of $3,420.00 for work that has been done and an estimate of $2,495.00 to complete the work on the tooth. According to the information provided, the work on this tooth and the sinus augmentation will cost over $8,800.00 when it is complete. The Applicant had provided information that it would cost $3,434.00 in addition to the $2,500.00 he had paid to complete the implant and crown in additional information supplied for the hearing. It may be that the sinus augmentation was unanticipated and increased the cost, although it is not clear from the invoice. In the circumstances the CICB believes it is reasonable to make a contribution toward the cost of the dental work and to authorize up to $3,434.00 to be paid directly to Dr. G. for dental expenses related to the injury as a result of the assault by the Alleged Offender, that is, an implant and crown to replace the right upper first molar, upon submission of invoices for that work to the CICB, and to pay the Applicant directly $2,500.00 which he has paid towards the work done so far (therefore the CICB’s total contribution to the cost is $5,934.00). As a result of this order, and at the request of the Applicant in his Notice of Motion, the CICB, rescinds the portion of the interim order of $1,100.00 payable to Dr. S. J.
30The Applicant was recently referred to a Psychologist by his Family Physician and he has applied for funds for this purpose. The CICB authorizes up to $2,400.00 (exclusive of tax) for counselling expenses to be paid directly to a qualified treatment provider upon receipt of a curriculum vitae outlining the credentials of the services provider. These sessions can only be accessed when the therapy sessions are not covered by other sources. Therapy sessions should be completed within 36 months of receipt of this Order. It is the CICB’s practice to award up to $100.00 per session for therapy or up to $125.00 per session for registered psychologists. Payment will be made directly to the treatment provider on a monthly basis, upon submission of an invoice and required verification from the Applicant.
31The Applicant testified that he will be pursuing physiotherapy for his hands. The assessment report recommends 12 sessions. Accordingly, the CICB authorizes up to $800.00 (exclusive of tax) for physiotherapy expenses to be paid directly to a qualified treatment provider upon receipt of a curriculum vitae outlining the credentials of the services provider. These sessions can only be accessed when the sessions are not covered by other sources. The physiotherapy sessions should be completed within 36 months of receipt of this Order.
32The Applicant made a claim for travel to treatment. The CICB awards travel to treatment costs where the distance is greater than 40 kilometres one way. From the material provided, the appointment with Dr. S. in [city] on [date], 2018, and the appointment with Dr. G. [date], 2018 in [city] qualify. The total round trip kilometers at 40 cents per kilometre (352 @ 40 cents=$140.80).
33The Applicant applied for compensation for expenses related to a personal loan he had received to cover expenses he indicated arose as a result of his injuries. The Applicant was aware of, and did apply for an interim award for expenses related to his fractured tooth. That is the appropriate avenue to pursue for urgent expenses and in the circumstances, this claim is denied.
Award
34The CICB orders payment as follows:
The events involving Offenders 1 and 2:
Subsection 7(1)(a) Expenses prescriptions; splint; scar treatment $ 182.98
Subsection 7(1)(a) Expense physiotherapy assessment $ 85.00
Subsection 7(1)(a) Future Pre-Authorized Expense physiotherapy $ 800.00
Subsection 7(1)(a) Future Pre-Authorized Expense counseling $ 2,400.00
Subsection 7(1)(d) Pain and Suffering Offenders 1 and 2 $11,000.00
TOTAL AWARD (AND COSTS): $14,467.98
35The event involving the Alleged Offender:
Subsection 7(1)(a) Expense dental paid by Applicant $ 2,500.00
Subsection 7(1)(a) Travel to treatment $ 140.80
Subsection 7(1)(a) Expenses (Section 14 Award) $ 501.00
Subsection 7(1)(a) Future Pre-Authorized Expense dental $ 3,434.00
Subsection 7(1)(d) Pain and Suffering Alleged Offender $ 5,000.00
TOTAL AWARD (AND COSTS) Alleged Offender $11,575.80
TOTAL BOTH AWARDS (AND COSTS) $26,043.78
Less: Section 14 Award – already paid/authorized $ 501.00
Less: Preauthorized treatment costs $ 6,634.00
TOTAL CURRENT AWARD $18,908.78
Payment
36THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $18,908.78
DATED at Toronto this 22nd day of October, 2018.
_______________________________
Christine McGoey, Member