CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: James Graham
Indexed as: (Re) 1706-01887
DECISION
INTRODUCTION
1The Applicant applied to the Criminal Injuries Compensation Board (CICB) seeking compensation for expenses, loss of income and pain and suffering for injuries resulting from a shooting that occurred on [...].
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 submissions.
Evidence
4The Applicant testified that in the early evening of [...] he was walking along a street when he was passed by a black SUV coming towards him. It stopped after it passed him; two men got out and shot at him a number of times. Two shots struck him and he fell. The men climbed back into their vehicle and left.
5A police officer confirmed the Applicant’s evidence. Video evidence confirmed the version but was not detailed enough to identify the alleged offenders. The police officer confirmed that he had no reason to believe that the Applicant contributed in any way to his injury. He explained that drive by shootings of innocent victims are not uncommon. He also said that the Applicant co-operated with police.
6The Applicant was taken to hospital where he was treated for two gunshot wounds. One bullet struck him in the left buttock. Fragments of the bullet remain in the Applicant’s body and may have to be removed in the future. The second bullet struck the Applicant’s right tibia, requiring installation of a metal bar which still remains in place. He was in hospital for seven days. His doctor reports that the Applicant could not return to work until May, 2017.
7The right leg has gradually improved, but he has no feeling in his great toe and now has a limp. His job requires physical exertion and he finds that the leg is very tired at the end of the day. His doctor confirms that the difficulty he still experiences is likely chronic.
8He says the shooting plays in his mind every day. If he sees a black SUV his mind races and the memories return. He has ongoing fear that it could recur. He is more withdrawn than in the past.
ANALYSIS
Crime of Violence
9Section 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.
10The Applicant is required to prove, on a balance of probabilities, not only that he was a victim of a crime of violence but also that the injuries resulted from the crime.
11We find the Applicant is a victim of a crime of violence. The police were on the scene almost immediately. They interviewed witnesses, reviewed videos of the scene, and concluded that the Applicant was shot by persons unknown.
12We find the Applicant’s injuries resulted from the crime of violence. There are videos of him being shot and the injuries of which he complains and for which he was treated are the obvious result of the shooting.
Section 17
13Section 17 of the CVCA requires the CICB to consider whether:
(1) the Applicant’s behaviour may have directly or indirectly contributed to the injuries.
(2) the Applicant refused reasonable cooperation with, or failed to report the incident promptly to a law enforcement agency.
14Having considered all the relevant circumstances we are satisfied neither of the section 17(1) and (2) factors are relevant to this Application. The police officer made it clear that the investigation satisfied him that it was a drive by shooting by strangers to the Applicant. He also stated that the Applicant was fully cooperative with the police investigation.
Compensation
Pain and Suffering
15In assessing the claim for pain and suffering the CICB considered the fact that there were two injuries, there are still bullet fragments in the Applicant which may require future removal and the right leg has a permanent metal bar installed. That leg does not function was well as the healthy leg. We also note that the great toe on the right foot has no sensation, does not function and causes the Applicant to limp. We recognize that memories of the shooting still trouble the Applicant, that the sight of similar vehicles cause stress, that the assault has made the Applicant more withdrawn and that he still feels anger about it. Having taken into account all of these matters, we award the sum of $9,000.00 as compensation for pain and suffering.
Expenses and Income Loss
16The Applicant must provide reliable evidence to support the claims for:
expenses actually and reasonably incurred as a result of injury; and
income or pecuniary loss incurred as a result of his total or partial disability affecting his capacity for work
17The Applicant's claim for $200.00, being the cost of special footwear required as a result of the injury to his right leg, is allowed. Since the invoice provided by the Applicant shows that the amount is still outstanding, payment will be made directly to Sunnybrook Health Sciences Centre.
18The Applicant has provided pay statements from his employer showing that he was being paid approximately $504.00 per week prior to the shooting. His doctor confirms that he was unable to return to work until May, 2017. It is the CICB’s practice to pay loss of net income up to $50.00 per day and $1,000.00 per month. Therefor we award the sum of $4,150.00 for lost income, being four months and three days.
Counselling/Therapy
19As the Applicant intends to enter into therapy in the near future the CICB authorizes up to $1,200.00, exclusive of any applicable taxes, for therapy.
20The CICB awards up to $100.00 for each therapy session and up to $125.00 for each therapy session conducted by a registered psychologist. The CICB does not provide compensation for therapy sessions covered by an applicant's employment or insurance benefits.
21Payment is made directly to the approved treatment provider on submission of an invoice and receivingconfirmation of the treatment provider's professional status unless the CICB already has confirmation on file.
AWARD
22The CICB orders compensation as follows:
Subsection 7(1)(d) Pain and Suffering $9,000.00
Subsection 7(1)(a) Expenses $ 200.00
Subsection 7(1)(b) Income Loss $4,150.00
Subsection 7(1)(a) Future Pre-Authorized Expense $1,200.00
TOTAL AWARD $14,550.00
Less: Preauthorized treatment costs $1,200.00
TOTAL CURRENT AWARD $13,350.00
23THE CICB ORDERS the following be paid immediately to the:
Applicant $13,150.00
Sunnybrook Health Sciences Centre $200.00
Dated at Toronto, Ontario this 29th day of January 2019
James Graham, Member