(Re) 1801-00152, 2019 ONCICB 2

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Evelyn J. Baxter

Date: January 15, 2019

Indexed as: (Re) 1801-00152

DECISION

Introduction

1The Applicant applied to the Criminal Injuries Compensation Board (CICB) seeking compensation for pain and suffering for injuries resulting from an assault that occurred on [...].

Decision

2In accordance with the Compensation for Victims of Crime Act, RSO 1990, c C24, as amended (CVCA), the CICB grants the Application. My reasons for this Decision follow below.

Hearing

3The hearing was conducted in writing on the basis of the materials contained in the Applicant's file.

Documentary Evidence

4The CICB received the following documents with respect to the claim:

a. Application

b. Police report/questionnaire

c. Court documents

d. Hospital reports

e. Medical report

f. Therapy report

g. Victim Impact Statement

5The Applicant described the details of the crime in writing as follows:

6He parked his car in his leased parking spot in a city parking garage one morning before work. He exited the car park and walked out onto the street. He saw the Offender walk toward him swearing and yelling loudly saying the Applicant has used the fire exit. The Applicant observed the Offender to be a young male wearing clothing that gave him the appearance he was a service person or technician of some sort. The Applicant apologized to placate the Offender, but that did not stop the Offender from his ranting. Suddenly the Offender began punching the Applicant in the face. The Applicant fell to the ground, and the Offender began kicking the Applicant all over his body. Two passersby managed to get the Offender off the Applicant, but the Offender struggled to continue to assault the Applicant.

7The Applicant ran to a nearby police station. The police called an ambulance for the Applicant, but the Applicant declined the ambulance ride because of the cost. The Applicant and a police officer returned to the scene of the assault. The Applicant was escorted to his work to gather his things and to seek medical attention. He provided a description of the Offender.

8The police report/questionnaire dated February 12, 2018 corroborated the Applicant's version of the assault. The Offender was arrested a few weeks after the assault. The police report noted the Applicant suffered 2 black eyes, a broken nose, deviated septum, cuts to his face, bruised elbows, and a bruise on his left ear.

9The court documents provided indicate the Offender eventually pleaded guilty to assault causing bodily harm and received a suspended sentence and probation.

10The Applicant described his physical injuries in his application that were similar to what was reported in the police report adding that the bridge of his nose was cut and bled "profusely", bruising and pain. The emergency room report, dated January 14, 2016, also confirmed the injuries noted above.

11The hospital report dated about 10 days after the Applicant was assaulted confirms the Applicant suffered a broken nose and a deviated septum. He was given a CT scan which ruled out a concussion or other head trauma. The scan did show he suffered a "minimally displaced nasal bone fracture" and that the Applicant was not experiencing any nasal obstruction "whatsoever". The Applicant's nose was displaced 1 to 2 mm to left. All of his other facial bones were normal. The attending doctor informed the Applicant there was not much that could be done to fix his nose because the deformity was so minimal. He was referred to a rhinologist to address the deviated septum. The Applicant's black eyes were noted to be healing.

12The report also noted the Applicant had a history of nasal obstruction for which he used a spray. At the time of the assault, it appeared the Applicant was no longer using the spray.

13The rhinologist's report dated March 1, 2016 noted the Applicant had a deviated septum that could benefit from surgery, but the Applicant decided not to have the surgery at that time.

14The medical report dated May 28, 2018 from a walk-in clinic noted the Applicant was experiencing pain in his elbows, despite normal x-rays and ultra sound. The Applicant was advised to return if the elbows continued to bother him. The doctor suggested baths or water therapy to help with the pain.

15The Applicant described his psychological injuries, writing he felt shame, embarrassment for not defending himself, inadequate, fearful, and suffering constant reminders of the assault.

16The Applicant wrote he had previously been in counselling with a psychologist, mainly for his ongoing marital issues, but that he had been discussing the assault as well, because he felt his small stature fed into the feelings he and his wife had about his masculinity and inability to protect his family. He also felt the assault was racially motivated given his appearance, dress and what the police told him about the Offender attacking another person around the same time.

17In his Victim Impact Statement, the Applicant wrote he felt "diminished" and "vulnerable" by the assault. His routine has changed. He is more socially isolated, has less trust of people, and that he has moved his parking spot to the garage under his workplace, thereby losing his daily walks to and from his car.

18He also noted he experienced intermittent nose bleeds, numbness on his nose, and his elbows continued to bother him and that his use of his arms had been impacted.

19The psychologist's report dated May 30, 2018 noted the Applicant experienced post-traumatic stress like responses to rage and anger. His relationship issues increased because of the threat to his masculinity, and particularly since his wife was not supportive but blamed him for not protecting himself or their family. The psychologist also noted the Applicant felt unsafe on the street and had occasional nightmares about the assault.

20The psychologist noted the Applicant was "very resilient" and could overcome the triggers of the stress of the incident. The Applicant was "triggered" mostly because of his wife's reaction to him and the assault. The Applicant at that time, had been to see the psychologist about 35 times commencing prior to the assault on [...]. His last noted session was May 30, 2018. It was noted the Applicant needed about 10 more sessions at $250.00 per session.

21The Applicant's employer confirmed, in its report, the Applicant missed four days of work for which he received benefits for his entire salary.

Analysis

Crime of Violence

22A conviction is conclusive evidence that a crime of violence occurred. As there was a conviction in this case, the Applicant is required to prove, on a balance of probabilities, that his injuries resulted from the crime of violence.

23We find the Applicant's injuries resulted from the crime of violence because the medical and therapy documents provided to support the Applicant's claim confirm he suffered both physical and psychological injuries as a result of the assault that took place on the date noted above.

Section 17

24Section 17 of the CVCA requires the CICB to consider whether:

a. The Applicant's behaviour may have directly or indirectly contributed to the injuries.

b. The Applicant refused reasonable cooperation with, or failed to report the incident promptly to a law enforcement agency.

c. Any benefit, compensation or indemnity was paid or is payable to the Applicant from any source other than social assistance.

25After considering all the evidence, we find there are not any s. 17 issues relevant to this Application.

Compensation

Pain and Suffering

26In assessing the claim for pain and suffering the CICB considered the circumstances of the crime of violence, the physical and psychological injuries the Applicant suffered, and the ongoing impacts he experienced.

27It 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 CVCA 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.

28The CICB finds the Applicant to be compensable pursuant to s. 5(a) of the CVCA as a victim of a violent crime and awards him compensation in the amount of $5,000.00 for pain and suffering, having regard to the fact the assault was unprovoked and shocking to the Applicant. The Applicant suffered injuries that caused him pain and required some medical attention. The Applicant continued to experience some emotional difficulties for a period of time following the assault including shame, nightmares, fear, and increased difficulties with his marriage. The CICB also noted the Applicant missed about four days of work because of the injuries and had to go to work with visible injuries to his face until they healed.

Expenses

29The Applicant was seeking compensation for his psychologist's services; however, he did not produce receipts or proof of payment despite being asked to do so by the CICB in their letter dated January 26, 2018. Therefore, the amount of $340.00 requested by the Applicant is denied. The CICB noted the Applicant, who was employed full time, had insurance that appeared to have covered a portion of his expenses.

30The Applicant, in his Victim Impact Statement, also noted his coat ($750) and fedora ($450.00) were damaged in the assault. He also had to pay higher parking space rental cost of $200.00 per month, which was $60.00 per month higher than he was paying for the original space he had. The CICB cannot reimburse for lost/damaged or stolen property, nor can it reimburse for financial expenses such as rent or parking costs. While it was not clear the Applicant was requesting to be reimbursed for these items, and even if he were to make such a claim, the CICB would have to deny it.

Award

31The CICB orders compensation as follows:

Subsection 7(1)(d) Pain and Suffering $5,000.00

TOTAL AWARD $5,000.00

32THE CICB ORDERS the following be paid immediately to the:

Applicant $5,000.00