CRIMINAL INJURIES COMPENSATION BOARD
Adjudicators: David Fine and Christine McGoey
Indexed as: (Re) 0111-30549
DECISION
Introduction
1The Applicant has requested a review of the Decision dated August 22, 2018 (Original Decision) in accordance with section 10(1) of the Compensation for Victims of Crime Act, RSO 1990, c. C24, as amended.(CVCA)
2Section 10 provides:
(1) Where an application is heard by a single member of the Board under section 9, the applicant or the Minister may, within fifteen days after service of the decision of the member, require a hearing and review by the Board and the Board shall fix a time and place for the hearing and shall at least ten days before the day fixed cause notice thereof to be served upon the parties to the proceeding.
(3) The hearing shall be conducted and the jurisdiction of the Board shall be exercised by at least two members of the Board and the member whose decision is being reviewed shall not sit on the review.
(4) After a hearing and review by the Board under this section, the Board shall make its order in accordance with this Act and its order supersedes the order of a single member made under section 9 that is the subject of the hearing and review.
3Rule 19.2 of the CICB’s Rules states:
An applicant may request a review of the decision of a single member on the grounds that the decision contains a serious error of law or an unreasonable exercise of discretion.
Issue
4The Panel must decide whether the Applicant has identified a serious error of law or an unreasonable exercise of discretion in the Original Decision.
5The basis of the request for review is that the Applicant’s request for a variation under s.25 of the CVCA was denied by a single member on a written hearing.
6Section 25(1) provides that the CICB may:
(…) on the application of the victim vary an order for payment of compensation as the Board sees fit.
In proceeding under subsection (1) the Board shall consider any new evidence that has come available; any change in circumstances that has occurred since the making of the order (…) and any other matter the Board considers relevant.
Decision
7The Panel finds the Applicant has not met the test for review.
8By Order dated November 21, 2005 following a documentary hearing by a single member the Applicant was awarded compensation of $3500 for pain and suffering as a result of a crime of violence in accordance with the CVCA.
9On December 20, 2017, the Applicant filed a request to vary the November 21, 2005 Order pursuant to section 25 of the CVCA. The Applicant requested additional compensation for pain and suffering based on new evidence in the form of medical and therapy reports dated July 24, 2018, and August 18, 2018, respectively from her family doctor and a victim impact statement.
10The single Member denied the request for a variation on the basis that the new evidence did not demonstrate that the Applicant’s physical and psychological symptoms were solely and exclusively tied to the crime of violence. According to the November 21, 2005 Order, in 1998 the Applicant was struck in the head by a frozen grapefruit which was thrown from an eighteenth floor apartment balcony. The Applicant is of the view that the object that struck her was a yellow ice ball. Although the 1998 assault played a contributing role in terms of the Applicant’s symptoms it was not the only trauma which has contributed to her symptoms.
11Further, the single Member stated that because lump sum awards for pain and suffering are intended to take into account past and present injuries and to some extent future consequences to the Applicant, it is only in exceptional circumstances that a variation to a pain and suffering award will be made by the CICB.
12The documentary hearing was conducted more than seven years after the 1998 incident. The Member conducting the hearing stated that the medical testing and examinations of the Applicant by an optometrist and neurologist indicated that everything was normal. The Applicant was diagnosed with post-traumatic headaches anxiety and phobias. The Applicant made a number of physical and psychiatric complaints to her doctor over the next few years but they were not deemed to be related to the 1998 incident.
13The Doctor has been the Applicant’s family doctor for about ten years. In his reports he says that the Applicant suffers from a traumatic brain injury whiplash, fibromyalgia hemi-facial spasm and PTSD. Although the Doctor mentions the incident in 1998 as a contributing factor to the Applicant’s symptoms he also makes reference to a childhood head injury and a head injury suffered in a bicycle accident in 2012. From an emotional perspective the Doctor mentions that the Applicant unexpectedly lost her husband in 2016.
14In her impact statement the Applicant detailed her issues following the 1998 incident, links to the internet and articles about the long term dangers of concussions and the link between trauma and fibromyalgia syndrome.
15The CVCA gives the CICB broad discretion in fashioning awards to victims of crimes of violence. The purpose of the CVCA is for victims of crimes of violence to receive some compensation for the injuries they suffer. Compensation is drawn from public funds thus the Legislature limits the amounts that can be awarded and gave the CICB broad discretion in making awards. See Rice v .Ontario (CICB), 2008 O.J. No.4424. Also the CICB has broad discretion in making awards to decide whether and what amount to award for any expense being claimed. See McIntomey v.CICB, 2006 ONSC 1598. The CICB’s discretion is underscored in section 25 which provides the CICB "may", as opposed to “shall”, consider varying an order for compensation as the CICB thinks fit.
16The single Member denied the request for a variation of the pain and suffering award on the basis that the Applicant had a childhood head injury and since the incident in 1998 the Applicant has had a number of physical and mental issues caused by events unrelated to that incident including a head injury from a bicycle accident in 2012. He also took into account the initial diagnosis following the 1998 incident which was that the Applicant’s tests were normal but that she suffered from post-traumatic headaches, anxiety and phobias. In doing so, we are of the view that the single Member exercised his discretion appropriately
17The Applicant has not demonstrated there was a serious error of law or unreasonable exercise of discretion
18For these reasons the request is denied and the Original Decision is confirmed.
Dated at Toronto this 22 day of March , 2019
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David Fine, Board Member
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Christine McGoey, Board Member