CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Kevin Cleghorn
Indexed as: (Re) 1706-02007
DECISION
Introduction
1The Applicant applied to the Criminal Injuries Compensation Board (CICB) seeking compensation for injuries resulting from a crime of violence. The Applicant is seeking the following forms of compensation: pain and suffering.
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 $7,500.00. The reasons for this Decision follow below.
Hearing
3The Applicant appeared in person and provided oral testimony and submissions.
Evidence
4The Applicant testified that she brought food over to the apartment of her son’s girlfriend. She observed that the Alleged Offender was also present. She joked that the Alleged Offender and her son’s girlfriend always seemed to be together. The Alleged Offender yelled at her, punched her twice in the back and then slammed her head into a coffee table.
5The Applicant had a large gash in her forehead. The Alleged Offender and her son’s girlfriend left the apartment. The Applicant went into the hallway and a passerby noticed her distress. An ambulance was called for the Applicant. The police and the ambulance arrived at the scene. The Applicant declined to talk to the police at the time. She was transported to a local hospital for emergency treatment.
6The Applicant was given a CT scan at the hospital. A physician applied stitches to close the wound on her forehead. It was described to her as a deep cut. She was warned of the possibility that she had a concussion.
7The Applicant has experienced long-term repercussions from the incident. She has a permanent scar on her forehead. She suffers from memory loss, forgets conversations with other people, fails to remember that she has food on the stove and needs the assistance of friends and support persons to be reminded of appointments. The Applicant suffers from frequent headaches, often twice per week. She experiences sleep disruption due to recurring nightmares. Recollection of the incident causes her to be reminded of childhood abuse that she experienced. The Applicant cries frequently.
8The memory loss is particularly significant due to the need for the Applicant to ingest medication. She currently is battling cancer and needs to be reminded frequently of the need to attend for treatment. The Applicant is fearful of leaving her home, indicating that she goes out only for necessary appointments and to purchase groceries. The incident of assault has been life-altering for her.
9The Alleged Offender was charged with assault causing bodily harm. The charge was dismissed as against him for reasons that are unknown. The Applicant was unaware of the basis for the dismissal nor was there any indication in the police information as to the reasons for that outcome.
Analysis
Crime of Violence
10There was no conviction in respect of the incident.
11Section 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.
12The Applicant is required to prove, on a balance of probabilities, not only that she was a victim of a crime of violence but also that the injuries resulted from the crime.
13I find that the Applicant is a victim of a crime of violence because she has injuries consistent with her description of the event. The medical and therapy records confirm that she experienced a head injury from the incident which required emergency medical intervention. There is no explanation provided by the police for the dismissal of the charge as against the Alleged Offender. The Applicant does not have an explanation for the dismissal of the charge as against the Alleged Offender.
14I find that the Applicant’s injuries resulted from the crime of violence although there is some indication that she had prior head injuries before the night of the incident. There is reference in the hospital records to the Applicant having “repetitive head trauma”, as well as a CT scan on her brain in 2015. There is no information, however, that she had prior symptoms of memory loss or headaches to the degree and frequency that she has had subsequent to the incident.
Injury
15I find the Applicant’s injuries resulted from the crime of violence that occurred on the night of the incident.
Section 17
16Sections 17 of the CVCA read as follows:
(1) In determining whether to make an order for compensation and the amount thereof, the Board shall have regard to all relevant circumstances, including any behaviour of the victim that may have directly or indirectly contributed to his or her injury or death.
(2) The Board may, in its discretion, refuse to make an order for compensation or order a reduced amount of compensation where it is satisfied that the applicant has refused reasonable co-operation with, or failed to report promptly the offence to, a law enforcement agency.
(3) In assessing compensation, the Board shall take into consideration any benefit, compensation or indemnity paid or payable to the applicant from any source other than social assistance.
17After considering the evidence the CICB is satisfied there are no s.17 issues relevant to deciding this Application. With respect to s. 17(1), I cannot find that the mere act of inquiring why the Alleged Offender and her son’s girlfriend are together so often justifies the behavior of the Alleged Offender or his violent reaction toward her. The Applicant can in no way be blamed for the injuries she sustained on that evening.
18In this case, the CICB finds the Applicant delayed reporting the incident to the police but do not consider that relevant to s. 17(2). The applicant experienced a head injury on the night in question. Her immediate reaction was to obtain medical assistance. She was concerned that the police who attended at the scene of the incident were more interested in extraneous matters than tending to her injuries. She eventually provided the police with information, co-operated with the investigation and assisted with the prosecution of the Alleged Offender.
19Section 17(3) of the CVCA requires that the CICB take into account any benefit, compensation or indemnity paid or payable to the Applicant from any source. The CICB is not aware of any benefit, compensation or indemnity paid or payable to the Applicant which is relevant to this analysis.
Compensation
Pain and Suffering
20In assessing the claim for pain and suffering the CICB considered that the incident has been life-altering for the Applicant. She does have memory loss, recurring headaches, a permanent scar on her forehead, sleep disruption, nightmares and the triggering of memories of childhood abuse. She has experienced physical pain and emotional turmoil following the incident which will be present likely for the remainder of her life.
Award
21The CICB orders compensation as follows:
Subsection 7(1)(d) Pain and Suffering
$ 7,500.00
Total Award (and Costs)
$ 7,500.00
Payment
22The CICB orders the following be paid immediately to the:
Applicant
$ 7,500.00
Dated at Toronto on March 22, 2019
Kevin Cleghorn, Board Member