(Re) 1803-00805, 2019 ONCICB 66

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Keith Forde Date: April 15, 2019 Indexed as: (Re) 1803-00805

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/wages and treatment expenses.

Preliminary issue

2Prior the commence of the hearing, the Applicant informed the CICB that due to his brain injury, he would like his common law partner to act on his behalf. The Applicant said that he understands what is being said to him, however, he is unable to analyze the information heard to ask the appropriate questions.

3The Applicant’s common law partner informed the CICB that the Applicant suffers from cognitive impairment after the incident and is unable to critically analyze the information heard.

4The Panel chair referred to the Practice Directions support the Social Justice Tribunals Ontario (SJTO) Common Rules of Procedure and provide guidance about what the Tribunal expects of the parties and in turn what the parties can expect of the Tribunal. Under the direction of the SJTO, the panel chair allowed the Applicant’s common law partner to act as an unpaid family member (unlicensed representative) who is not in the business of providing legal services and who does not receive compensation.

5At the beginning of the hearing, the CICB confirmed that the Applicant was advised of subsection 17(1) and 17(2) of the CVCA and that he was aware the CICB would consider those parts of the CVCA when deciding the application. These subsections read as follows:

17(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.

17(2) The Board may, in its discretion, refuse to make an order for compensation or ordered 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.

6The Applicant and the litigation guardian confirmed he understood the meaning of the above sections and, after having been offered an adjournment and an opportunity to consult with the litigation guardian, the Applicant and his litigation guardian indicated that they did not wish an adjournment in the matter and was prepared to proceed with the hearing as scheduled.

Decision

7In accordance with the Compensation for Victims of Crime Act, RSO 1990, c.C24, as amended (CVCA), the CICB denies the Application. The reasons for this Decision follow below.

Hearing

8The Applicant appeared in person and provided oral testimony and submissions.

Evidence

9The Applicant testified that on the evening in question he attended a community function in the north end of the city in the public square with two of his friends. The Applicant said he left the function with his two friends and was walking about 100 metres in front of them on his way to his apartment complex. The Applicant remembers crossing the road to the other side but after that he said that he woke up in the area hospital two days later with no memory of what transpired after crossing the road.

10The Applicant was asked if he had been consuming any alcoholic beverages while at the square and if he was intoxicated. He responded that he had consumed about four beers and he believed he was intoxicated. The Applicant also confirmed that his two friends were also consuming alcoholic beverages and were also in a drunken stupor.

11The Applicant further stated that he was told by one of his two friends that was with him on the evening in question, that he was punched in the neck by a security guard at a nearby restaurant causing him to fall backward. He said as he fell, he stuck his head on the pavement cracking his skull which resulted in him having a seizure.

Police evidence

12The CICB had the benefit of affirmed testimony from the police officer who was at the scene. The officer testified that he has been a police officer for six years.

13The Police Witness testified that he responded to a radio call in the north end of the city in relation to a drunken male yelling, screaming and threatening people in the area. There was a function at a public square and the event organizer had placed the call to the police. The Police Witness stated that he spoke to the complainant who advised that three males attended the event and that they were yelling and screaming at the attendees. When the three males were asked to leave, the Applicant pushed the complainant and threatened to punch him in the face.

14The complainant advised that the Applicant and his friends then began to walk south on the main street away from the event. The complainant pointed out two of the three males walking south.

15Police then proceed south to locate the group; upon approaching a local restaurant establishment, the Police Witness observed a male lying on the ground conscious and breathing. The Police Witness observed that the male fit the description of the person who pushed and threatened to punch the complainant.

16While at the scene awaiting the arrival of the ambulance, a male approached the Police Witness and advised that the person on the ground was his friend and that he was punched by an unknown person.

17An independent witnesses advised the Police Witness that the Applicant was yelling and swearing at the staff at the restaurant and threatening to enter the establishment and kill people.

18The Police Witness testified that the establishment has a railed off patio area to the roadside where patrons can dine and have theirs drinks on the outside of the establishment. Some of the patrons had to leave the enclosed area in order to smoke; as such, they left their belongings and went smoking just outside the patio area. It was at this time, the Applicant and his friend were passing by and tried to reach over into the patio to grab a woman’s belongings. One of the patrons yelled at the Applicant and his friend; this apparently annoyed the Applicant. The Applicant then approached the women who felt intimidated and returned to the patio to retrieve their purses, phones and belongings. The Applicant tried to reach for the women in an assaultive manner and the women became frightened. The Applicant again started yelling and swearing at the women and threatened them using abusive language.

19The Police Witness said that the Alleged Offender came outside and stood between the Applicant and the women; at this time the Applicant came towards the Alleged Offender pushing him and grabbed his shirt in a violent manner. The Alleged Offender defended himself and pushed the Applicant causing him to fall to the ground. The Alleged Offender told the Police Witness that he feared for his and the female’s safety.

20The Police Witness said that several of the witnesses confirmed the Applicant’s behaviour and said that he was the instigator.

21The Police Witness testified that after speaking with six independent witnesses, he came to the conclusion that an appropriate use of force was used by the Alleged Offender in defending himself and concluded that it was a case of self-defense.

22The Police Witness attended the hospital where the Applicant was transported and was told by the staff that the Applicant’s injuries were non-life threatening and that he was too drunk to provide any information.

23At this point in the hearing, the Applicant informed the panel chair that he understood what the police officer said but he was unable to analyze the information to ask the appropriate questions necessary. The Applicant then asked if his Litigation Guardian could assist him by asking the Police Witness questions.

24I allowed the Litigation Guardian to ask the Police Witness questions. The questions were of a clarifying nature relative to the Applicant’s condition at the scene and at the local hospital.

25The cross examination of the Police Witness was concluded and the Applicant submitted that the Police Witness’ testimony was inconsistent and taken from non-reliable sources.

26When I asked the Applicant what he was wearing on the day of the incident, he said that he could not remember.

Injuries

27The hospital records show the Applicant was taken to the emergency department by ambulance and presented with a laceration to back of his head, his left eye was swollen. The report noted the Applicant was hospitalized from September 3-8, 2016 as a result of his injury

28The CICB was in receipt of a psychiatrist report which noted the Applicant suffered from poor memory and concentration, headaches, dizziness, memory problems, difficulty using hands (especially right hand), depressed, anxious, difficulty finding words, stopped school, reduced social activities, avoids big crowds, fatigue. The psychiatrist noted that he expect the Applicant to continue to have anxiety, depression, mental problems and mental fatigue and placed him on prescribed medication.

29The CICB was also in receipt of a medical report from a neurologist noting the Applicant suffered from traumatic brain injury from the assault, he has reached a plateau after two years recovery and is close to his maximum medical recovery. The Applicant testified that he now suffers from cognitive fatigue, easily tired when he socializes or get on with daily tasks, has trouble retaining information, gets headaches every week and is unable to multitask.

30The Applicant noted in his application that his scalp was broken and required 12 staples to put back together, his right frontal subarachnoid hemorrhage, blood in the right flax, right ambient in the right internal capsule, left temporal lobe, and a minimal intra-ventricular hemorrhage at the left occipital horn.

Analysis

Crime of Violence

31The fact that there has not been a conviction for a crime of violence is not fatal to the Applicant’s claim. Section 16 (1) of the CVCA provides that compensation may be awarded whether or not a person has been prosecuted or convicted of the offence that gives rise to the injury or death.

32In respect to this claim, notwithstanding the foregoing and for the following reasons, the CICB is unable to find, on a balance of probabilities, that the Applicant was a victim of a crime of violence, and therefore, a victim within the meaning of section 5(a) of the CVCA.

33In determining whether the Applicant was a victim of a crime of violence, I carefully considered his evidence against the oral testimony of the Police Witness and the documentary evidence on file. In doing so, I had issue with the credibility and reliability of the Applicant’s evidence. In regards to the question surrounding the Applicant’s level of intoxication he testified that he had four beers and was intoxicated. The Applicant also testified that he was on his way home and was never involved in any altercation, either at the event he attended at the square or on his way walking home. In contrast, the Police Witness testified that the Applicant was involved in at least three altercations; first at the square where he assaulted the complainant, then at the restaurant where he threatened the patrons with bodily harm and then where he assaulted the Alleged Offender.

34Given the issues with credibility and reliability of the Applicant’s oral testimony, I prefer the evidence of the Police Witness, who conducted a thorough investigation and obtained statements from six independent witnesses at the scenes.

35Section 17 (1) of the CVCA obligates the CICB to consider all the relevant circumstances of the case and to consider the principle of proportionality. The relevant circumstances include whether there was any conduct by the victim that contributed to his injury as well as the severity of the injury suffered. The CICB must decide whether to grant compensation, deny compensation or allow a reduced award.

36The fact that the Applicant was engaged in at least three incidents on the evening in question; that he was the instigator in all the incident without provocation; the fact that he had assaulted two victims and threatened others with bodily harm and the fact that he was intoxicated.

37All of these factors are relevant circumstances under Section 17 (1) of the CVCA. Furthermore, the conduct of the victim as set out above was such that it was reasonably foreseeable that he would have become a victim of a crime of violence.

38I have carefully considered the injuries suffered by the victim against these relevant circumstances to determine whether compensation ought to be awarded to the Applicant, whether a reduced award of compensation should be granted or whether compensation ought to be denied. I have concluded that the Victim engaged in conduct of such a serious nature that his injuries were proportional to those activities. Accordingly, I deny the victim and compensation under Section 17 (1) of CVCA.

39In light of the above analysis, there is no compensation available to the Applicant for his loss of income/wages or his medical expenses.

40After the hearing was finished and the tape recorder was turned off, as the Applicant’s common law partner was leaving the hearing room, she said to the panel chair that she knew him and wondered if it was a conflict of interest. When the panel chair asked her what was the conflict of interest, she said that she was in the audience when the panel chair gave a speech to the Ontario Public Service (OPS) some time ago and knew who he was.

41The Litigation Guardian raised this issue with respect to whether there was any bias against the Applicant. The test for reasonable apprehension of bias is “whether an informed person, viewing the matter realistically and practically – and having thought the matter through – would conclude that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide the matter fairly”. See Landau v. Ontario (Finance), 2012 ONSC 6926.

42The threshold for a finding of real or perceived bias is high. Mere suspicion is insufficient to support an allegation of bias. Rather, a real likelihood or probability of bias must be demonstrated. There is also a strong presumption in favour of the impartiality of an adjudicative decision-maker. Canadian College of Business and Computers Inc. v. Ontario (Private Career Colleges), 2010 ONCA 856 at paras. 24, 27.

43There is only a bald allegation of bias or a conflict of interest. There is nothing else alleged with respect to my conduct during the hearing. I am of the view therefore the applicant has failed to satisfy the threshold for a finding of bias.

44Further, while I was a Deputy Chief of Police and have been retired from policing for almost nine years. I do not know the Applicant’s common law partner and had no bias interest in the hearing.