Ontario Superior Court of Justice, Divisional Court

Court File No. 661/98

Date: 2000-03-29

O'Driscoll, deP. Wright and Swinton JJ.

Counsel:

Andrew Lewis, for appellant.

Anita L. Lyon, for respondent, Attorney General of Ontario.

The judgment of the court was delivered orally by

[1] O'Driscoll J.:—The Appellant appeals to this Court, pursuant to the provisions of s. 23 of the Compensation for Victims of Crime Act, R.S.O. 1990, c. C.24 ("the Act"), from the decision of the Acting Chair of the Criminal Injuries Compensation Board ("CICB"), dated September 15, 1998.

[2] The Appellant, born January 6, 1935, is now sixty-five (65) years of age. On August 13, 1990, at the age of fifty-five (55) years, he was employed as a corrections officer at the Elgin-Middlesex Detention Centre at London, Ontario. The Appellant was assisting another corrections officer in subduing an inmate, named Tim Collins, who had become violent. The inmate kneed the Appellant in the groin, bit the Appellant's left ring finger and knocked the Appellant's glasses to the floor. Tim Collins was convicted of assaulting a peace officer, contrary to the Criminal Code. From August 13, 1990, to November, 1990, the Appellant was off work because of his injuries. He has not worked since November 27, 1990.

[3] In April, 1991, he underwent a right orchidectomy. In December, 1992, he underwent a left orchidectomy. He had a heart attack in 1994. He is now diabetic and suffers from depression. The order of the CICB, dated October 28, 1997, sets out the Appellant's injuries in detail.

[4] The Appellant and his then solicitor/counsel attended at a hearing before the CICB at London, Ontario, on September 19, 1997. The Board released its order on October 28, 1997; the Board said, in part:

After considering all of the evidence, oral and documentary, the Board finds the Applicant to be a victim as defined by section 5(a) of the Act.

The Board assesses the injuries to the Applicant as severe and the award for pain and suffering at the top range allowed under the Act.

Pursuant to section 17(3) of the Act, "the Board shall take into consideration any benefit, compensation and indemnity paid or payable to the applicant from any source other than general welfare assistance or family benefits."

The Applicant received $12,000.00 in non-economic loss from the Workers' Compensation Board. Therefore, after considering this benefit, the Board now awards $13,000 for pain and suffering.

[5] There was no appeal from the Board's award to Mr. Cameron. On August 28, 1998, Mr. T.G.M. Hadwen, General Counsel for OPSEU, acting as solicitor for the Appellant, wrote to the Registrar of the Board and said, in part:

In the award, "The Board assesses the injuries to the Applicants severe and the award for pain and suffering at the top range allowed under the Act". In other words, the board awarded $25,000.

Pursuant to s. 17(3) of the Act, the Board then took into consideration other benefits received. The Board noted that Mr. Cameron had received a $12,000 Non-Economic Loss award ("NEL award") from the Workers' Compensation Board and therefore, after considering this benefit, the Board reduced its award to $13,000.

Mr. Cameron has since discovered that this NEL award has been deducted twice from monies he is receiving and that he is thereby denied the full legitimate benefit of the Board award. This works an injustice on Mr. Cameron which we now bring to the attention of the Board.

Mr. Cameron's injury left him totally disabled. He also receives Long Term Disability Insurance benefits. The NEL award is also being deducted from those benefits. Enclosed please find a letter dated February 28, 1996 from the insurance company confirming the deduction of the NEL award from the disability benefits. To summarize, Mr. Cameron's NEL award has been deducted from both his LTIP and his Board award. This leaves him disadvantaged in a way that should be rectified. The Board should vary or alter the earlier 1997 decision to remove the deduction for the NEL award, as it is already being deducted elsewhere.

[6] On September 15, 1998, the Acting Chair of the CICB replied to Mr. Hadwen as follows:

You note that in their Board Order dated October 28, 1997, the Board Members applied section 17(3) of the Compensation of Victims of Crime Act. This section requires the Board to "take into consideration any benefit, compensation or indemnity paid or payable to the applicant from any source other than general welfare assistance or family benefits."

As they were required to do by s. 17(3), the Board Members considered Mr. Cameron's Non-Economic Loss (NEL) award in making their decision. In doing so, they followed the Board's practice of deducting the amount received for Non-Economic Loss from their award for pain and suffering.

The Board's decision to deduct the NEL award was made independently of the calculation of Mr. Cameron's Long Term Income Protection benefit by Manulife Financial. In this instance, the significant fact is that the NEL award was paid to Mr. Cameron to compensate him for the lasting physical effects of his injury, and the Board has decided that he would be overcompensated if his award was not reduced by the NEL amount.

As a result, there is no reason for the Board to vary or alter the Board Order of October 27, 1997. I trust this letter responds to your concerns.

[7] On October 15, 1998, the Appellant launched an appeal to this Court, pursuant to s. 23 of the Act, from the order of the CICB, dated September 15, 1998, refusing, under s. 25 of the Act, to vary or alter the order of October, 1997.

Conclusions

[8] In my view, the Acting Chair of the Board did not commit any error in law or fact, nor has he fettered his discretion.

[9] It is agreed that the Appellant received $12,000 from the Workers' Compensation Board for Non-Economic Loss (NEL) before his appearance before the Board on September 19, 1997. It is within the Board's discretion to deduct that amount as a benefit received by Mr. Cameron (see s. 17(3) of the Act). The fact that the collective agreement between OPSEU and the Government of Ontario may contain articles that allow an insurance carrier of Long-Term Income Protection (LTIP) to deduct the NEL in monthly increments, in my view, is not a concern of the CICB. We were told by counsel for the Appellant that the deduction by the insurance carrier, marked "$87.33 (WCB NEL award)", has taken place every month since August, 1992, roughly ninety (90) months, for a total deduction of approximately $7,859.70. We were also told by counsel for the Appellant that Mr. Cameron attained retirement age of sixty-five (65) years on January 6, 2000, and the LTIP stopped and so, too, the monthly deduction of $87.33.

[10] Whatever the insurance carrier deducted it was deducted with the consent, expressed or implied, from Mr. Cameron, a member of OPSEU.

[11] It seems to me that if Mr. Cameron has any quarrel regarding the deductions that have been made by ManuLife Financial since August 1992, the quarrel is with someone other than CICB.

[12] For these reasons, the appeal will be dismissed.

With the concurrence of my colleagues, I have endorsed the back of the appeal book as follows:

This appeal is dismissed for the oral reasons given for the Court by O'Driscoll J. No order as to costs.

[13] Appeal dismissed.