Re 1612-00563, 2019 ONCICB 67

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: M. Saleem Akhtar

Date: April 16, 2019

Indexed as: (Re) 1612-00563

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 out-of-pocket expenses and loss of wages / income.

Decision

2In accordance with the Compensation for Victims of Crime Act, RSO 1990, c.C24, as amended (CVCA), the CICB partially grants the Application and awards the Applicant pain and suffering compensation in the amount of $5,000.00. The CICB also approves $400.00 towards the cost of expenses. The reasons for this Decision follow below.

Hearing

3The Applicant attended an oral hearing in person and provided oral testimony. In addition, the CICB considered written materials including a Police Report, the Applicant’s written submissions, treatment / assessment reports from the Hospital and his Family Physician, and Income Tax Returns from Canada Revenue Agency (CRA) for the years 2011, 2012 and 2014 to 2016. An Oral Decision was rendered at the end of the hearing on September 12, 2018. The Applicant has requested written reasons of my Decision.

Documentary Evidence

4In his Application to the CICB, the Applicant described that, on the day of the incident, he was physically assaulted, punched and kicked by the Alleged Offender while he was standing in a store waiting for one of his relatives. As a result of the assault, the Applicant felt unconscious and fell to the ground. Someone notified the police about the incident. The police came on the scene, chased the Alleged Offender and arrested him and charged him with Mischief and Assault in relation to the Applicant.

5The Police Report synopsis on file by and large corroborates the Applicant’s version of the incident. The Alleged Offender was charged with “Assault” and “Mischief Under” in this matter. Eventually, the Alleged Offender received Absolute Discharge and entered a Peace Bond for six months in relation to the Assault charge, whereas the charge of Mischief was withdrawn. The Police Report adds the Applicant sustained “swelling to head; right side behind right ear”.

6In his Application to the CICB, the Applicant described his physical injuries: swollen right eye and bumps at the back of his head causing severe headaches and excruciating pain in the back and hip. He experienced “weakness” and started “urinating inconsistently”. With regards to the emotional injuries, the Applicant described that he became emotionally distressed and experienced “serious flashbacks”. It became very difficult for him to concentrate on his day-to-day work, whether doing personal chores or in relation to his job. He had difficulty sleeping and sleepless nights. He had to make frequent hospital visits in connection with nose bleeding, breathing difficulties and flashbacks. He feels “isolated, vulnerable and fearful of persecution”. He remains as he describes “always in constant fear of being attacked by the accused and his accomplices. There is no guarantee of safety and I may be attacked any time on the road, out of the blue”. The assault has also caused him financial loss in terms of damages to his vehicle and loss of wages for several months because he was not sure when he could resume his work as a cab driver.

7In support of his injuries claim, the Applicant submitted treatment / assessment Reports from the Hospital and his Family Physician.

8In support of his loss of wages claim, the Applicant submitted his Income Tax Returns for the years 2011, 2012 and 2014 to 2016.

Oral Testimony

9In his sworn oral testimony, the Applicant testified that, on the day of the incident, he was working as a cab driver. After parking his vehicle in front of a store, he went near the door of the store when the Alleged Offender showed up from nowhere and punched him in the face, in the stomach and in the back of his head. The Applicant fell down on the floor. People at the store rescued him from the Alleged Offender. Someone called the police who quickly came on the scene. The Alleged Offender attempted to flee, however, he was arrested. The Applicant made a statement to the police on site. The police towed his vehicle to the police station for photos and forensic investigation. The Applicant visited the hospital for treatment the same day.

10With regards to his physical injuries, the Applicant testified that he sustained a swollen right eye, a bump in the back of the head and a stomach injury. His neck and back were also sore and hurting. He was prescribed to take Ibuprofen for treating pain and inflammation and was released from the hospital after 4-5 hours. He was advised to return to the hospital if the situation deteriorated. After 2-3 weeks, he made a follow-up visit at the hospital for nose-bleeding. He was given ice-cap and gauze as treatment and was released. He experienced severe headaches. He visited the hospital another time for his Electromyography (EMG) test. The Applicant added that emotionally he felt depressed. His concentration level went down and he experienced flashbacks. He developed serious issues with his bladder. He had not been working and driving cab since the incident.

11I asked the Applicant if he and the Alleged Offender were known to each other. He responded ‘yes’ and added they had known each other for some time and would see each other almost every day.

12I asked the Applicant if there was any verbal or physical altercation between the two prior to the assault in question. The Applicant replied ‘no’ and added he did not say anything to the Alleged Offender. On the contrary, the Alleged Offender shouted and swore at the Applicant without any provocation, and, then, assaulted, punched and kicked him, causing injuries.

13I asked the Applicant if he was transported to the hospital in an ambulance. He responded ‘no’ and added, most probably, ambulance was there at the scene, however, he told the Paramedics that he was ‘ok’ and did not use the ambulance. Later, the same day, he went to the hospital for treatment on his own.

14I asked the Applicant how long it took for his physical injuries to heal. He responded ‘one month’.

15Referring to a medical report, I asked the Applicant if he had pre-existing back pain and “prostatism” issues impacting his bladder strength. The Applicant replied ‘yes’ he had back issues since 1997 resulting from another incident. He also confirmed that, most probably, he was diagnosed with “prostatism” in 2010.

16Referring to his Income Tax Returns, I asked if he had been in receipt of income benefits from Social assistance Program(s), He replied ‘yes’ he had been on ODSP, maybe since 2003 or 2004.

17Again, referring to his Income Tax Returns, I asked if he declared any income in his Income Tax Returns other than what he received from ODSP and /or some other similar program. He replied ‘no’.

18I further asked the Applicant if he had submitted any relevant supporting documentation in support of his loss of wages / income. He replied ‘no’ and added he was driving a cab, therefore, it is taken for granted that he was making some income, and, now, when he is unable to drive a cab due to the impact of the assault, he is losing income.

19Referring to his out-of-pocket expense claim in the amount of $215.00 for prescription drugs, and an unspecified amount as travel to treatment costs, I asked the Applicant if he had submitted any proof of payment in this respect. He responded ‘no’.

20Again, referring to his out-of-pocket expense claims in respect to eyeglasses costs in the amount of $835.00 and vehicle related expenses in the amount of $4,168.42, I confirmed that the receipts were on record.

Analysis

Crime of Violence

21The Alleged Offender was not convicted of the Assault. Rather, he received Absolute Discharge and instead, signed a Peace Bond.

22Section 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.

23After considering the Police Report, charges laid, treatment / assessment reports, and the Applicant’s sworn testimony regarding the incident, which I find credible, reliable and compelling, I find, on a balance of probabilities, that the Applicant was a victim of a crime of assault within the meaning of section 5 of the CVCA.

24I find the Applicant’s physical injuries such as swollen eye, bump in the back of the head, headaches and soreness resulted from the crime of violence. I also find that some of the Applicant’s emotional injuries such as flashbacks, lack of focus and sleep disturbances as noted in the report from his Family Physician resulted from the assault and its impact. With regards to the back pain, bladder / urination problem, emotional distress and hyper-tension, these were pre-existing according to medical reports as well as the Applicant’s own account. However, these issues might have been aggravated somewhat due to the assault.

Compensation

Pain and Suffering

25In 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 considered the on-going impact on the Applicant’s overall health, relationships and productivity. The CICB also took into account that the Applicant was assaulted without any provocation on his part.

26It is important to note that the CICB has wide discretion to determine whether or not to award compensation to an applicant from public funds (Leung v Ont. (Criminal Injuries Compensation Board), 1995 Carswell (Div.Ct) at para 5). The CVCA is not intended to make an applicant seeking compensation whole or to provide full indemnity to an applicant. The CICB is mindful that awards are paid using public funds. They are not paid by the wrongdoer as would be the case if an applicant 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.

27After 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 $5,000.00 for pain and suffering.

Expenses and Income loss

28The Applicant must provide reliable evidence to support the claims for:

• expenses actually and reasonably incurred as a result of incident-related injury

• income or pecuniary loss incurred as a result of his total or partial disability resulting from the incident and affecting his capacity for work

• pecuniary losses resulting from his incident-related injury and any other expenses that the CICB considers reasonable

29The CICB has considered the Applicant’s claim in the amount of $215.00 in respect to out-of-pocket prescription drugs costs and an unspecified amount towards travel to treatment costs. The Board generally requires original receipts and / or other supporting documentation for any expenses that are claimed, both to verify the amount(s) claimed and to confirm that such costs were not covered by other sources, such as private insurance or public funds. In the absence of such evidence, and having found no compelling reason to deviate from its usual practice in this instance, the CICB denies this part of the claim.

30The Applicant provided a receipt with respect to eyeglasses in the amount of $835.00. The CICB awards a contribution of $400.00 towards the cost of eyeglasses, which it considers to be both reasonable and within the context of the CVCA.

31The CICB considered the Applicant’s claim for personal items and vehicle damages in the amount of $4,168.42. The CICB generally only awards compensation to cover treatment related expenses such as hospital, medical or therapy expenses and not expenses related to personal items / property or moving costs or financial debts. Having found no compelling reasons to deviate from its usual practice in this instance, the CICB declines to award compensation for the Applicant’s claim in respect to vehicle repair costs.

32With respect to the Applicant’s claim for ongoing income loss in the amount of $60,000.00, the CICB generally requires supporting documentation such as an employer’s report, pay stubs or other relevant documents in order to verify the Applicant’s employment status and average net earnings at the time of the incident, and to determine whether any income-replacement benefits were received during the period being claimed. In the absence of relevant supporting documentation, and having found no compelling reasons to deviate from its usual practice in this instance, the CICB finds that the Applicant has failed to establish his claim for income loss and the claim in that regard is hereby denied.

Award

33The CICB orders compensation as follows:

Subsection 7(1)(a) Expenses $400.00

Subsection 7(1)(d) Pain and Suffering $5,000.00

Total Current Award $5,400.00

Payment

34The CICB orders the following be paid immediately to:

Applicant $5,400.00