(Re) 1803-00949, 2019 ONCICB 29

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: M. Saleem Akhtar

Date: February 24, 2019

Indexed as: (Re) 1803-00949

DECISION

INTRODUCTION

1The Applicant applied to the Criminal Injuries Compensation Board (CICB) seeking compensation for pain and suffering for injuries resulting from multiple incidents of Assault that occurred between March 1999 and April 2000. A co-resident in a Group Home assaulted the Applicant. Both the Applicant and Alleged Offender were youth at the time.

DECISION

2In accordance with the Compensation for Victims of Crime Act, RSO 1990, c C24, as amended (CVCA), the CICB grants the Application and awards the Applicant $8,000.00 as compensation for pain and suffering. The reasons for this Decision follow below.

HEARING

3The Applicant appeared by teleconference and provided sworn oral testimony. His Counsel also appeared via teleconference. In addition, the CICB considered written submissions made by the Applicant, as well as treatment / assessment reports contained in his Application.

DOCUMENTARY Evidence

4In describing details of the crime, the Applicant wrote that he and the Alleged Offender had known each other for about 15 months. Both lived in the same Group Home. The abuse started as a “game” of “punch-buggy”, but the Alleged Offender hit really hard and seemed to enjoy that. The Alleged Offender targeted the Applicant and one other resident in particular for his “game.” The Alleged Offender seemed to be going after them because neither of them was interested in using illegal drugs.

5The Applicant claims that the Alleged Offender would punch him in the face or on the head. He would kick the Applicant usually in his private parts. This pattern of assault continued for several months. The Alleged Offender would assault at least once per week. He also stole Applicant’s possessions from his room. The staff members of the Group Home did not protect the Applicant or prevent the on-going assaults, despite the Applicant’s several complaints made in this respect.

6In support of his Application, the Applicant submitted a letter of support in May 2018 from his mother. His mother wrote that her son disclosed the incidents of bullying and abuse he had suffered at the Group Home and about staff behaviour.

7The Applicant further writes that the Alleged Offender was convicted, but received probation.

8Regarding details of his injuries, the Applicant describes that the “assaults were painful, but did not leave me with permanent physical injuries.” However,

(…) attacks and the fear caused by knowing another attack would come caused me to have more seizures than I would normally have had: grand mal epileptic seizures are painful and debilitating and I had to rest for 2-3 hours following one…

9The Applicant further describes:

The main damage to me was emotional. I lost the ability to trust adults to protect me. I had no confidence in anybody and was given the impression that my word was no good. This caused me to question my own value since no one would listen to me unless they had actually seen the violence. It is only quite recently that I have had the confidence to make this application.

10Police report confirms that the Alleged Offender was physically aggressive with the Applicant on more than one occasion. Police report notes the Applicant “complained of soreness to his left shoulder and evidence of red marks to his left shoulder.”

11Police report indicates that the Alleged Offender was arrested and charged. However, in an e-mail, written in June 2018, addressed to the CICB, a police department official wrote “Unfortunately, we have no records pertaining to the outcome.”

ORAL TESTIMONY

12The Applicant’s sworn oral testimony, via teleconference, by and large corroborated his description of the incidents, as given in his Application. However, he added that, although the assault happened at least 100 times, the Group Home staff observed assault on three occasions, and they ended up charging the Alleged Offender. In addition to physical assault, the Alleged Offender was involved in verbal abuse and name-calling towards the Applicant.

13In response to questions from his Counsel, the Applicant testified that he “never hit back.” He “knew it would have been an assault. Staff had no compassion for me. They wouldn’t take my word. It was disappointing for me. Not only that, some staff even 'over-disciplined' me.”

14Physical injuries that the Applicant claimed he sustained included bruises and soreness. He added he did not seek medical treatment for these physical injuries and they healed in 2 -7 days.

15In terms of emotional abuse, the Applicant testified that the Alleged Offender would give him dirty looks and call bad names including “seizure boy.” The Applicant claimed the emotional abuse gave him anxiety. The very sight of the Alleged Offender would give the Applicant “goosebumps” and he felt “sick.” He was sick of the Group Home system. He developed trust issues, particularly with individuals in authority. He felt frustrated because the staff did not believe him.

16In response to questions from his Counsel with regards to injuries, the Applicant testified that due to the behaviour and conduct of the Alleged Offender, the Applicant experienced more number of bouts of epilepsy, and the duration of each episode increased as well. Several years after the abuse, Applicant underwent brain surgery to address his epilepsy issues. However, he suffered stroke during surgery, which left a negative impact that is lasting and on-going. After surgery, he had to relearn how to talk and concentrate thoughts. It took him a long time to be where he was today.

17Responding to questions from the Panel, the Applicant testified that he had had seizures since he was an infant. However, the assaults aggravated seizures, both in numbers and duration of each episode.

18In response to a question from the Panel, the Applicant told he had bad and unpleasant memories of early childhood. He did not get along well with his mother.

19When asked by the Panel if the Applicant thought that his brain surgery and stroke were the direct cause of the assault, the Applicant stated ‘yes and no’. Yes, because anxiety and anxiousness caused by assaults resulted in more seizures, more often, which led to the thinking of undergoing brain surgery, hoping for a good result. No, in the sense, that the assaults did not directly cause seizures because seizures were pre-existing, however, they exacerbated due to frequent incidents of physical assault and emotional abuse.

20The Panel asked the Applicant if there was any professional medical advice or assessment done to demonstrate that assaults caused him seizures or aggravated that condition. The Applicant responded “It did not occur to me that I will have to prove that I was epileptic.” He added no assessment was done by a professional and that he had not submitted to the CICB any treatment / assessment report to that effect.

21At this juncture of the hearing, the Applicant and his Counsel requested for additional time to enable them to procure and submit relevant treatment / assessment reports to the CICB for its consideration. Counsel also advised that he would send his written submissions along with treatment / assessment reports.

22The CICB granted their request and gave them time up to January 14, 2019.

23Counsel submitted two treatment / assessment reports. Both reports are from Mental Health and Addictions Centre. One report was written in April 2008 whereas the second report was written in April 18, 2018. Counsel also submitted a brochure entitled “Courtesy of Epilepsy Ontario.” According to this document, “Stress, excitement and emotional upset…may lower the person’s resistance to seizures…”

24The CICB notes that the Counsel did not file written submissions.

ANALYSIS

Crime of Violence

25There is no documentary evidence before the CICB that would establish there was conviction or no conviction in this matter.

26Section 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.

27The CICB notes that the Applicant’s oral testimony was inherently consistent with his written submissions made in his Application. He was straight forward and sounded honest in responding to questions from the Panel. He was not evasive in his responses. His testimony was convincing, credible and compelling.

28Having considered the documentary evidence including police report, and the Applicant’s oral testimony, the CICB find the Applicant, on a balance of probabilities, to be a victim of multiple incidents of assault within the meaning of subsection 5(a) of the CVCA.

29The 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 he claimed he sustained resulted from the crime.

30After considering documentary evidence including police report and treatment / assessment report and the Applicant’s sworn oral testimony, the CICB accepts that the Applicant sustained physical and emotional injuries resulting from the childhood physical assault.

Compensation

Pain and Suffering

31In assessing the claim for pain and suffering, the CICB considered the nature and duration of the abuse as well as the extent of resultant physical and emotional injuries. The CICB finds that the physical injuries were relatively minor such as bruises and left shoulder soreness, which healed within 2-7 days, without any formal medical intervention. Neither of the treatment / assessment reports submitted by the Counsel establishes any direct or indirect link that the seizures originated from the alleged assaults that happened between March 1999 and April 2000. On the contrary, the Applicant had testified that he suffered from epileptic seizures since infancy. However, the CICB accepts that the Applicant’s pre-existing epileptic condition may have exacerbated due to the stress and anxiety caused by the assault, which is supported by medical literature on the subject.

32The CICB also took into consideration the fact that the Alleged Offender physically assaulted the Applicant several times at the latter’s young and vulnerable age.

33The CICB also considered any on-going impact on the Applicant’s over-all health, relationships and productivity.

Global Award

34While the CICB finds the Applicant experienced frequent assaults over a period of about 13 months, there is no evidence to establish a separate injury for each incident. It is, therefore, impossible to establish exactly which injuries resulted from which assault. Having said that, the CICB is satisfied and the evidence fully supports finding that the emotional and psychological impact of the assaults was cumulative over time.

35The CICB’s discretion to assess a “global” award for multiple occurrences was upheld by the Divisional Court in J.T vs Criminal Injuries Compensation Board, (2011) ONSC 2034 (Div.Ct.)

36It 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 No. 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.

37After 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 a global award of $8,000.00 for pain and suffering, taking into account the cumulative effect of all the incidents on the Applicant.

Right to re-imbursement

38Should the Applicant be awarded compensation as a result of civil suit/action, 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 CVCA that 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

39The CICB orders compensation as follows:

Subsection 7(1)(d) Pain and Suffering $8,000.00

TOTAL CURRENT AWARD $8,000.00

40The CICB recognizes that no amount of money can adequately compensate victims for the injuries they have suffered but also finds the amount of the award to be reasonable within the context of CVCA.

PAYMENT

41The CICB orders the following be paid immediately to the:

The Applicant $8,000.00