CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Louise Charette and Lisa Barazzutti
Indexed as: (Re) 1607-04162
DECISION
Introduction
1The Applicant applied to the Criminal Injuries Compensation Board (CICB) seeking compensation for injuries resulting from crimes of violence. The Applicant is seeking compensation for pain and suffering. An oral hearing was held on August 21, 2017 and a decision was issued by the CICB awarding compensation to the Applicant. The Alleged Offender did not participate in that oral hearing as he was not provided notice of the hearing.
2A request for reconsideration was filed by the Alleged Offender on June 18, 2019 with the CICB. That request was granted by the CICB on September 25, 2019. This is now a new hearing of the Application heard in writing by a two-member panel of the CICB.
Decision
3In accordance with the Compensation for Victims of Crime Act, RSO 1990, c.C24, as amended (CVCA), the CICB awards compensation to the Applicant. The reasons for this Decision follow below.
Hearing
4The hearing was conducted based on the documentary evidence which was filed by both legal representatives for the parties. Written submissions were filed with the CICB by both parties along with a video of one of the alleged incidents.
Evidence
5The Applicant writes in his Application that he was the victim of four (4) crimes of violence at the hands of the Alleged Offender. By way of background, during the times of the alleged incidents, both the Applicant and the Alleged Offender were tenants in the same condominium building.
[…]Incident
6The Applicant alleges that this incident occurred on […] and that after the Applicant had confronted the Alleged Offender about defacing some ads that he had posted on the condo bulletin board, the Alleged Offender hit him in the upper chest area which resulted in bruising to his chest and as a result of his head snapping back, a detached retina.
[…]Incident
7The Applicant alleges that on this date, the Alleged Offender threatened to kill his dog.
[…] and […] Incidents
8On […], the Applicant alleged that the Alleged Offender kicked his dog and struck the Applicant while waiting for an elevator in the condo lobby. This incident was captured on the condo video. With respect to the incident on […], the Applicant states that the Alleged Offender made a death threat against him as they encountered each other on the second floor of the condo.
Injuries
9With respect to the […] incident, the Applicant states that he sustained bruising to his chest area and that he also sustained a detached retina because his head was snapped back from the force of the push he sustained. The Applicant also states that he became fearful of his own personal safety.
10As for the […] incident, the Applicant writes that he was fearful of the Alleged Offender and was concerned for his own safety. No physical injuries were sustained.
11With respect to the incident which occurred on […], the Applicant writes that he sustained bruising and redness to his cheek area and was afraid of what the Alleged Offender would do next. As for the […] incident, the Applicant indicated that he became extremely concerned for his personal safety. Because of the prior incidents, the Applicant indicated that his fear of the Alleged Offender became even greater. There were no physical injuries sustained with respect to the […] incident.
12The CICB reviewed the medical records for the Applicant from his treating physicians which were filed in conjunction with his Application.
13The medical records for the Applicant indicate that the Applicant has a history of retinal detachment and had been treated for that as far back as 2011. The records do confirm however that in 2016, that the Applicant was again treated for ongoing retina issues which had manifested again between […] and[…].
14There were no counselling or psychological records or reports filed in conjunction with the Applicant’s claim.
Police Records and Criminal Trial
15There were police records filed with the Applicant’s claim for each of the incidents. The first police incident report which is dated […] corroborate what the Applicant claimed in his Application. This incident report also indicates that they police interviewed the Alleged Offender who admitted that he pushed the Applicant because the Applicant was in his “personal space.” The report goes on to indicate that the Applicant did not want to press any charges but wanted the Alleged Offender to not touch him again.
16The police incident report dated […], indicates that the Applicant contacted police after the Alleged Offender threatened to kill his dog. The police contacted the Alleged Offender who indicated that it was the Applicant who had harassed him but when pressed for details, could not back up these allegations against the Applicant. No charges were laid but the police cautioned the Alleged Offender.
17With respect to the […]incident, the police records indicate that they were advised by the Applicant that the Alleged Offender attempted to kick his dog and then rushed the Applicant with a closed fist. The Applicant was able to defend himself by putting his hand up to deflect but that he was hit near his ear on the right side of the face. The police records indicate that there was redness and swelling on the right side of the Applicant’s face. The police records also indicate that they were eventually able to retrieve surveillance video from the condo and upon their review of the video they formed the grounds to have the Alleged Offender arrested and charged with assaulting the Applicant. The police records also interviewed an independent witness who happened to be waiting in the lobby when this incident occurred and gave a statement which mostly corroborated what the Applicant said had happened.
18With respect to the […] incident, the written testimony of the Applicant is that he was verbally threatened by the Alleged Offender on this date and that the Alleged Offender told him that he was “fucking dead.”
19The Alleged Offender was charged with assault. At the trial of his assault charge, the Alleged Offender was found not guilty. The trial judge found that that the testimony of both parties were plausible and therefore had reasonable doubt.
Legal representative arguments
20The legal representative for the Applicant submits that the Applicant is a victim of multiple crimes of violence which were perpetrated by the Alleged Offender. She goes on to outline a series of events that occurred after the criminal trial which include a Small Claims Court action brought by the Alleged Offender against the Applicant and an eviction proceeding involving the Alleged Offender. While these documents were filed in conjunction with the Applicant’s claim it is important to note that they are not being considered by the CICB as they occurred after the alleged crimes of violence.
21Counsel for the Applicant argues that based on the police evidence filed, the Applicant’s written statements along with the statement obtained by a witness to the last incident, that the CICB should find that the Applicant was a victim of multiple crimes of violence at the hands of the Alleged Offender.
22The legal representative of the Alleged Offender argues that the CICB should not award any compensation to the Applicant. He argues that the Applicant’s testimony at the criminal trial was self-serving and that the Alleged Offender is the one who has been harmed by the Applicant. The legal representative argues that the Applicant had used the police as a weapon against his client. He further argues that the Applicant had brought these charges against the Alleged Offender in an effort to gain financial relief. The legal representative also filed material in conjunction with the condominium eviction proceedings, however, since those proceedings were subsequent to the incidents which this Board is considering, they will not be considered in this decision.
Analysis
Crimes of Violence
23There were no convictions with respect to the incidents involving the Alleged Offender. 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 giving rise to the injuries.
24The Applicant is required to prove, on a balance of probabilities, not only that he was a victim of crimes of violence but also that the injuries resulted from those crimes.
25I am satisfied on a balance of probabilities that the Applicant was a victim of the four crimes of violence with respect to the Alleged Offender. While the Alleged Offender was found not guilty of the assault on […] and the threat which were alleged to have occurred on […], it is up to this Panel to consider and weigh the relevant evidence filed in conjunction with the written hearing and come to its own conclusion based upon a balance of probabilities which is the adjudicative standard for this Board.
26The police reports indicate clearly that the Alleged Offender admitted to pushing the Applicant on […]. In addition, the Alleged Offender’s legal representative also indicates that his client had pushed the Applicant because he was in his personal space. The police records also indicate during their investigation of the […] incident that they interviewed a witness in the lobby who observed the incident and who confirmed that the Alleged Offender was the aggressor. The Applicant in his written materials indicates that he was pushed by the Alleged Offender. Based on these written records, and on a balance of probabilities, the Panel concludes that an assault did take place.
27It is important to note that the complete transcript of the criminal proceedings has not been filed with the CICB. The only part of the criminal proceeding which was filed was the decision of the trial judge. The testimony of the Applicant was not filed by either party. The testimony of the Alleged Offender was also not filed with these proceedings. Submissions of counsel are not conclusive of the testimony that occurred at trial. If the testimony of the Applicant was in question, then the legal representative of the Alleged Offender should have filed the entire transcript of the proceedings. The decision of the trial judge was that she had reasonable doubt and that she could not decide who was telling the truth.
Pain and suffering
28The CICB finds the Applicant to be a victim within the meaning of Section 5(a) of the CVCA as a result of the multiple acts of assault that occurred over a period of time and were committed by the Alleged Offender. The CICB finds that there were four (4) separate occasions, over a period of a couple of months.
29The CVCA was amended on May 29, 2029. Section 19(7) of the CVCA reads as follows:
19(7) In addition to applying to applications made on or after the day the Protecting What Matters Most Act (Budget Measures), 2019 receives Royal Assent, clause (1) (a), as amended by subsection 2 (1) of Schedule 11 to that Act, and subsection (6) apply to applications made but not finally decided by the Board before that day, subject to subsection (5). 2019, c. 7, Sched. 11, s. 2 (2).
30Since there previously was a final decision reached in this matter prior to the March 29, 2019 amendments to the CVCA and this matter was sent back to the CICB for a hearing de novo, the benefit should be to the Applicant and therefore the pre-amendment CVCA legislation shall apply.
31The Applicant’s case was presented in such a way that there is no evidence before the CICB in the Applicant’s documentary evidence, which establishes separate psychological or emotional injury for each occurrence. Rather, the evidence was presented in such a way that it is impossible for the CICB to establish exactly what injuries resulted from each occurrence and certainly the evidence suggested that the significant emotional and psychological impact of the abuse was cumulative over time.
32The CICB accepts that there was more than one occurrence, but for the reasons set out in this decision, awards the Applicant the sum of $6,000.00, for pain and suffering, taking into account the cumulative effect of all the occurrences on the Applicant.
Award
33As the Applicant was previously awarded the sum of $6,000.00 in the previous decision and did not return the award, no further payment to the Applicant shall be made.
Dated at Toronto on
______________________________
Louise Charette, Board Member
Lisa Barazzutti, Board Member