CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: M. Saleem Akhtar
Indexed as: (Re) 1609-04720
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, incident-related expenses and loss of wages.
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 $6,000.00. The reasons for this Decision follow below.
Hearing
3The Applicant and his Legal Representative appeared by teleconference and provided oral testimony and submissions. In addition, the CICB considered a police report, the Applicant’s written submissions, treatment / assessment reports, a Record of Employment (ROE), and Income Tax Returns from Canada Revenue Agency (CRA). The CICB also considered additional documentation, submitted in March 2019 by the Applicant’s Legal Representative, which includes a copy of the Applicant’s driver’s license, the Legal Representative’s written submissions and CRA’s reports for the years 2015 to 2017.
Documentary Evidence
4In his Application to the CICB, the Applicant described that in [..] , while he and his girlfriend were attending a bar, he was attacked from behind. He did not see anything but a fist in his eye, and then, an ambulance. He was later told that he was hit on the head with a bar stool / chair.
5After an investigation of this event, the Police charged the Offender with Assault Cause Bodily Harm and Assault with a Weapon. The Offender eventually entered a plea of guilty to the Assault Cause Bodily Harm count.
6In his Application to the CICB, the Applicant described his injuries: laceration to the head requiring staples, black right eye, sore left shoulder and leg, soreness to upper front teeth, and experienced periodic black-outs. He had a follow-up visit at the hospital in August 2016 for another head CT scan. Because of black-outs, his driver’s license was suspended. In addition, he states that as a result of this incident, he lost his job and broke-up with his girlfriend. He has experienced anxiety and depression since the incident.
Oral Testimony
7In his sworn oral testimony, the Applicant testified that, on the day of the incident, he and his girlfriend attended a bar and had a few drinks. All that he remembered was that he was punched in the face and put into an ambulance. He was, later, told that he was hit / punched by a male.
8I asked him if he had any altercation with anyone at the bar, prior to the incident. The Applicant responded ‘no’. He added he did not know who the Offender was.
9I asked the Applicant if he would consider himself intoxicated at the time, the Applicant told he could not remember how many drinks he had that night, however, he thought he was close to being intoxicated. He added consumption of alcohol might have had a role to play in this incident, but not as far as he was concerned. He thought the Offender was intoxicated.
10The Applicant did not have to testify at the Courts because the Offender pled Guilty to Assault Cause Bodily Harm.
11After advising the Applicant that according to his Record of Employment (ROE), he was laid off on July 5, 2016, which is prior to the incident, I asked the Applicant to explain how he thinks he was fired due to the assault. The Applicant responded that he was offered to start a new job the following Monday, which would have been July 11, 2016. As he could not start his new job because of the injuries sustained from the assault, he was fired.
12I further asked the Applicant if he had submitted any legal / official documentation to support his claim that he had a formal firm offer for a new job, scheduled to start on July 11, 2016. The Applicant responded ‘no’.
13The Applicant and his Legal Representative expressed that, given more time, they could furnish more documentation in support of the loss of wages claim. Their request was granted and they were granted time up to March 19, 2019 to submit any and all relevant documentation in support of the claim. The Legal Representative also advised that he would like to make his final submissions in writing along with other documentation, which was agreed to. The Legal Representative provided additional documentation as referred to above, and I considered that evidence as well before rendering this Decision.
14The Applicant’s legal Representative had no further questions for the Applicant.
15In terms of his injuries, the Applicant testified that he sustained eye injury and his eye remained filled with blood for a couple of weeks. He received 9 staples to repair his head wound. His whole body remained sore for some time. He had to go for a follow-up visit to the Hospital due to his head injury because he was experiencing black-outs. After the incident, he lost his driver’s license, his job and his girlfriend. He became depressed. He started drinking a lot as well as indulged in substance abuse as a coping mechanism to overcome his anxiety and depression, caused by the assault.
16In support of his injuries’ claim, the Applicant submitted photos of his physical injuries, treatment / assessment reports from two Hospitals and medical reports / notes from his Physicians.
17In support of his loss of wages claim, the Applicant submitted Record of Employment (ROE) and Income Tax Returns from Canada Revenue Agency (CRA) for the years 2010 to 2017.
18Referring to a medical note from his Family Physician, I asked the Applicant if he had fallen in the washroom prior to the incident and that is where he sustained head injury. The Applicant responded ‘yes’ he had fallen in the washroom prior to the assault and hit his forehead, but the head injury that he was claiming resulted from the assault of July 9, 2016.
19I asked the Applicant if he had pre-existing anxiety, depression, history of head trauma, concussion, alcohol and substance abuse, insomnia and headaches coming in spasms. He responded he had anxiety and depression and other mental health issues and addictions, but he was managing them with medication. The assault made the situation worst and the anxiety and depression exacerbated many-fold. He started counselling sessions in December 2016. He attended a Detox Centre in January 2017. He could not go back to work and, thus, suffered financial loss, leading to financial difficulties.
20In response to questions from his Legal representative, the Applicant testified he sustained a fall on the day of the incident, prior to the assault. However, it was not a major one. His anxiety and depression were situational. They were not really bad then, however, after the assault, they “really became bad”. After the assault and its impact, he felt useless because he lost everything. He tried to re-build himself, but the circumstances were discouraging and frustrating. He was offered a job, but he did not have a driver’s license or a vehicle.
Legal Representative’s submissions
21The Applicant’s Legal Representative submitted that the Applicant was the victim of an unprovoked attack by the Offender. The Applicant sustained physical injuries to his right eye and on the back of his head. His body was also sore and he had some issues with the shoulder for a few days after the incident. Emotionally, he experienced anxiety and depression due to the assault. The Applicant had pre-existing anxiety and depression issues, but they were manageable. The assault aggravated the mental health issues. His loss of job and loss of girlfriend due to the assault further worsened his state of mind. He started alcohol and substance abuse as a coping mechanism, which further contributed to his mental state of affairs. He turned to attending counselling sessions and Withdrawal Management Program, in an attempt to regain his life, which he did succeed to some extent. However, he is limited in what he can do in terms of seeking and maintaining regular employment since the assault.
22Making a case for the Applicant’s loss of wages claim, the Legal Representative stated that, at the time of the incident, the Applicant worked as a general labour at PK Welding and Fabrication. He decided to move from that position and hold automotive parts position. He originally intended to work the Monday following the incident, but quickly realized that he was unfit due to his injuries. He requested the week off to heal and went home to recover. Two days later, he was fired from the job citing “Not suitable for the position available”, as noted in his Record of Employment.
23The Legal Representative submits the Applicant has been facing challenges in procuring a job for a number of reasons. For example, new employers require him to account for the gap in his employment record which requires that he reveal the assault and subsequent abuse struggle. As his driver’s license remains medically suspended and he had to sell his car to pay for living expenses, he is also limited in where he can work. Given the circumstances, the Legal Representative submits that the Applicant’s claim for loss of wages at the rate of $552.00 per week be approved since the assault.
Analysis
Crime of Violence
24As already described above in this Order, there is a conviction for a crime of violence committed against the Applicant. Section 11 of the CVCA states that a conviction is conclusive evidence that an offence had been committed.
Injuries
25To be compensable under the CVCA, the Applicant is required, on a balance of probabilities, to prove that his injuries resulted from the crime of violence.
26I find the Applicant’s physical injuries resulted from the crime of violence, as is noted in treatment / assessment reports from Hospitals and his Physicians, as already referred to above. With regards to his emotional injuries, which were mostly pre-existing, these got aggravated due the assault and its impact.
Compensation
Pain and Suffering
27In assessing the claim for pain and suffering, the CICB considered the nature of the assault, and the nature and extent of injuries, both physical and emotional, sustained by the Applicant. The CICB also considered the on-going impact on the Applicant’s overall health, relationships and productivity. The CICB also took into account that most of the emotional / psychological injuries, if not all, claimed by the Applicant, were pre-existing, as documented in his medical reports, on file, and also confirmed by him in his oral testimony. Based on the medical record as well as the Applicant’s testimony, the CICB determines that most of the Applicant’s emotional injuries, if not all, were pre-existing, however, they got exacerbated due to the assault. The CICB accepts these treatment / assessment reports and the Applicant’s testimony for the purpose of compensation in this matter.
28It 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 (Div.Ct.)). 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 in order to determine a reasonable amount of compensation.
29After 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, and in order to maintain consistency across the Board, I make an award of $6,000.00 for pain and suffering.
Expenses and Income loss
30The Applicant must provide reliable evidence to support the claims for:
expenses actually and reasonably incurred as a result of injury
income or pecuniary loss incurred as a result of his total or partial disability affecting his capacity for work
31The Applicant's claim for out-of-pocket expenses in the amount of $45.00 as ambulance costs is denied because the Applicant has not provided receipts or other documentation to support it.
32The Applicant's claim for an unspecified amount of out-of-pocket expenses in relation to counselling therapy costs and travel to treatment costs is denied for lack of relevant documentation in support of the claim.
Loss of Income / Wages
33The Applicant claims that he could not continue working for his employer since the assault. Hence, his loss of wages @ $552.00 per week be approved, since the incident.
34According to his Record of Employment (ROE) issued on July 22, 2016, the last day for which the Applicant was paid was July 5, 2016. ROE adds the Applicant was let go / laid off because he was considered “Not suitable for the position available”. There is no legal / official documentation provided to the CICB substantiating the Applicant’s claim that he had been offered to start a new job, the following Monday, which would have been July 11, 2016. In light of the above information, based on documentation, the Applicant has failed to prove that his loss of job was due to the assault committed against him on July 9, 2016. Hence, this part of the Applicant’s claim is denied for lack of relevant supporting documentation.
Award
35The CICB orders compensation as follows:
Subsection 7(1)(d) Pain and Suffering
$6,000.00
Total Current Award
$6,000.00
Payment
36The CICB orders the following be paid immediately to:
Applicant
$6,000.00
Dated at Toronto on April 8, 2019
M. Saleem Akhtar, Board Member