(Re) 1808-03074, 2019 ONCICB 52

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: James Graham

Date: March 22, 2019

Indexed as: (Re) 1808-03074

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, loss of income and expenses.

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 Applicant appeared in person and provided oral testimony and, through his counsel, provided submissions.

Evidence

4The Applicant testified that he is a police officer and was on duty on the date in question when he identified a wanted man, the Offender, in the back seat of a motor vehicle. He advised the Offender that he was under arrest, but the Offender fled. A foot chase ensued involving the Applicant and three other officers. The Offender resisted arrest, threatened the Applicant with a knife, struck him with the butt of the knife, wounded two officers with the knife and was finally subdued after being tasered twice. At the conclusion of the arrest, the Applicant checked himself for knife wounds and found none but noted pain in his right hand.

5The Applicant attended the local hospital to have his hand assessed and was found to have a fractured fifth metacarpal of the right hand.

6A cast was applied to the right hand and removed a month later. The Applicant underwent twice weekly physiotherapy for about 10 weeks and is expected by his family doctor to make a full recovery.

7The Applicant returned to work on light duties after two weeks and resumed full time duties in early April, 2018. At the time of the hearing, the Applicant’s right hand still lacked the strength and grip of the left hand and continued to give difficulty, particularly with typing and writing. He also notes a slight decline in accuracy with his hand gun. He finds that he now has a heightened sense of awareness while dealing with offenders at any threat level.

8The Applicant stated that did not lose regular pay during his physical recovery but was unable to work overtime until after April 3, 2018. He produced records that show that it was his practice to work overtime and that over the five month period beginning January 2017 he worked 79.75 hours more than he did in the first five months of 2018.

9The Applicant had his clothing destroyed in the course of the arrest, and asks the CICB for $700.00 compensation for the loss.

Analysis

Crime of Violence

10The Applicant must prove, on a balance of probabilities, that his injuries resulted from a lawful arrest.

11We find the Applicant’s injuries resulted from such lawful arrest. The police statements on file and the subsequent conviction of the Offender is sufficient to prove on the balance of probabilities that the arrest was lawful and that the resulting injury occurred.

Compensation

Pain and Suffering

12In assessing the claim for pain and suffering the CICB considered the high risk that the Applicant was exposed to in the course of the arrest, the temporary debilitation caused by the fracture, the lengthy physiotherapy regime, the ongoing weakness in the right hand, the difficulty in day to day use of the hand, and the ongoing sense of awareness he now has in confrontations of potential risk. The Panel assesses the award for pain and suffering at $7,000.00.

Expenses and Income Loss

13Section 7 (1) of the CVCA empowers the CICB to award compensation for expenses actually and reasonably incurred or to be incurred as a result of a victim’s injury.

14While the Panel is satisfied that the Applicant’s clothing was destroyed as a result of the arrest and the assault upon him, such a loss/expense did not occur as a result of the injury and so it must be denied.

15It is the CIBC’s practice to pay no more than $1,000.00 per month for lost income. The Applicant did not lose base income while recovering but says he lost overtime income. His counsel provided additional documentation in support of the claim showing the Applicant worked 79.75 fewer hours in the first twenty weeks of 2018 than he did in the same period in 2017. A reasonable inference is that he lost 79.75 hours of overtime income during that time. Counsel submits that he would have worked 90% of 235 hours available during the period in question but has provided no objective evidence to support that assertion. There appear to be two pay rates for overtime. It is not possible to determine which rate might apply to any particular hour of the 79.75 missed and so the Panel will apply the usual hourly rate of $49.95. Finally, as the CICB pays on the basis of net salary (gross less IT, IE and CPP), the gross loss will be reduced by 32%, the percentage of reduction of IT, IE and CPP during the first 20 weeks of 2018. Hence, the Panel determines that the Applicant’s overtime loss is (68% of 49.95 x 79.75) $2,708.79.

16The Panel awards a counsel fee of $400.00 to the Applicant’s counsel.

Award

17The CICB orders compensation as follows:

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

Subsection 7(1)(b) Income Loss $2,708.79

Subsection Section 22 Costs $400.00

Total Award $10,108.79

Payment

18The CICB orders the following be paid immediately to:

The Applicant $9,708.79

Law Firm $400.00