CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Kevin Cleghorn
Indexed as: (Re) 1804-01532
DECISION
Introduction
1The Applicant applied to the Criminal Injuries Compensation Board (CICB) seeking compensation for pain and suffering for injuries resulting from a crime of violence that occurred in [...].
DECISION
2In accordance with the Compensation for Victims of Crime Act, RSO 1990, c C24, as amended (CVCA), the CICB grants the Application. Our 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.
Evidence
4The Applicant is unable to offer information on this incident due to a cognitive/developmental disability. He is a senior citizen who is a resident of group home for individuals with developmental disabilities. The information provided in this matter comes from accounts from staff of the group home and the police report.
5On [...], the Applicant was viciously attacked by another resident of the group home. The Alleged Offender had targeted the Applicant and was pestering/prodding him in the day prior to the incident.
6The Alleged Offender invaded the bedroom of the Applicant and beat the defenceless Applicant for over twenty minutes. Although staff were called for assistance, the strength and persistence of the Alleged Offender caused staff to await the arrival of the police before the Alleged Offender was subdued. The Applicant was at the mercy of the Alleged Offender alone in his room prior to the arrival of the police. The Applicant was immediately transported to hospital.
7The injuries of the Applicant were serious and extensive. He had:
Multiple fractured ribs
Hematoma of the left-sided gluteal (solid swelling of clotted blood within the buttock tissue)
Fracture of the right-sided L4 transverse process and the left L3 transverse process (spine - low lumbar fractures)
Large hematoma on stomach (bite marks)
Hematoma under left eye, right eye and forehead
Large swelling on right cheek bone
Nasal septal deviation leftward (broken nose)
Epistaxis (nose bleed)
Right eye blackened
Skin tears on both arms.
8The Applicant is unable to articulate his feelings and cannot express the nature of his physical and/or emotional injuries. He did not eat for three days after the incident. It took approximately six months for him to recover from his physical injuries. He had the recurrence of seizures after his beating.
ANALYSIS
Crime of Violence
9The incident was reported to the Police but there has been no conviction. No charges were laid against the Alleged Offender on the basis of his own mental health challenges.
10Section 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 injuries.
11The 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 the injuries resulted from the crime.
12We find the Applicant is a victim of a crime of violence because all of the evidence is consistent that he was brutally attacked and injured through no fault of his own. He was the victim of a senseless and horrific assault. He was unable to deter the attack and was effectively alone and isolated while it went on for an extended period of time.
Section 17
13Section 17 of the CVCA requires the CICB to consider whether:
(1) the Applicant’s behaviour may have directly or indirectly contributed to the injuries.
(2) the Applicant refused reasonable cooperation with, or failed to report the incident promptly to a law enforcement agency.
(3) any benefit, compensation or indemnity was paid or is payable to the Applicant from any source other than social assistance.
14Having considered all the relevant circumstances we are satisfied none of the section 17 factors are relevant to this Application.
Compensation
Pain and Suffering
15In assessing the claim for pain and suffering the CICB considered the age of the Applicant, his extreme vulnerability due to his physical/cognitive condition, the horrific nature and length of the assault, the significant physical injuries, the obvious emotional impact of the assault, the length of time for his recovery, the youth and strength of the Alleged Offender and that the compensation is being paid from public funds.
Award
16The CICB orders compensation as follows:
Subsection 7(1)(d) Pain and Suffering $12,000.00
TOTAL AWARD (AND COSTS) $12,000.00
Payment
7The CICB orders the following be paid immediately to the:
Office of the Public Guardian and Trustee in trust for the Applicant $12,000.00
Dated at Toronto, Ontario this 5th of February 2019.
Kevin Cleghorn, Member