COURT FILE NO.: 343/02
DATE: 20041221
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: C.P. and J.G.,
Appellants,
-and-
Criminal Injuries Compensation Board
Respondent
HEARD: November 18, 2004
BEFORE: Lane, Pitt and Molloy, JJ.
COUNSEL: Lenard Kotylo, for the Appellants
David E. Fine, for the Respondent Board
E N D O R S E M E N T
THIS DOCUMENT IS SUBJECT TO A NON-PUBLICATION ORDER.
LANE J.:
[1] At the conclusion of the hearing on November 18, 2004, we allowed this appeal with costs and stated that our reasons would be delivered in writing later. These are our reasons.
[2] The appellants appeal from the order of the Board dated April 18, 2002 directing the payment by the Board of a total of $5500 to S.G. as compensation for criminal acts of violence said to have been committed by the appellants against her.
[3] In 1991, S.G. was some 13 years old and lived in Toronto with her aunt and legal guardian, the appellant J.G.. C.P. was the son-in law of J.G.. He lived in Cambridge, Ontario, and from time to time drove S.G. to and from Toronto to visit his family. In late 1991, S.G. made complaints that he had sexually interfered with her during some of these trips. As a result, she decided not to go to Cambridge any more. When she refused to go, she alleged that her aunt beat her with a coat hanger and a broomstick, refused her food and threatened to send her back to Jamaica. She made these complaints to a guidance counsellor and, as a result, she was taken into the care of the CAS in December, 1991.
[4] No charges were laid against J.G. arising from these allegations, but S.G. was removed from her care, a very damaging result. Criminal charges were laid against Mr. C.P. based upon S.G.’s allegations. A trial was held on June 25, 1992 and he was acquitted.
[5] S.G. applied to the Board for compensation. Her application was heard in February 2002 and the Board released its decision on April 18, 2002.
[6] The Board found that the fact that there had not been a conviction of Mr. C.P. was “not fatal” to the claim because section 16 of the Act[^1] permitted the making of an award “whether or not any person is prosecuted for or convicted of the offence giving rise to the injury or death.” The Board did not consider in its reasons whether the fact of the acquittal should play any role in its determinations. It found, on the balance of probabilities, that the acts alleged against these appellants had occurred and awarded compensation as noted above. The compensation is to be paid by the Board, which has subrogation rights against the perpetrators under section 26 of the Act. We were informed that the Board did not intend to pursue these rights against the appellants.
[7] An appeal lies from the order of the Board to this Court on a question of law pursuant to section 23 of the Act. We acknowledge at the outset that the decisions of Boards such as this one, composed of lay persons, are not to be scrutinized with the same scrutiny as is given to the reasons of judges. Nevertheless, there is a minimum level to which such Boards must be held and which this Board, in this case, has failed to meet.
[8] The question of law, which arises from the facts before us, is whether the hearing was conducted in accordance with procedural fairness, and the principles of natural justice. These principles include the right to have disclosure of the case to be met, and the right to have reasons given which explain the basis for the decision. In Baker[^2] the Supreme Court said:
[43] In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required. …. It would be unfair for a person subject to a decision such as this one, which is so critical to their future not to be told why the result was reached.
[9] In the present case, there is a statutory right of appeal, which is a right which cannot be exercised fully in the absence of reasons which explain, rather than merely state, the outcome of the hearing. The stakes for the appellants are not the continuation of their livelihood, as in Megens[^3] or admission into this country, as in Baker, but they are far from trivial. The appellant C.P. was charged with serious sexual offences against a child in his care at the time of the alleged acts. He was acquitted, but an adverse result at the hearing of this Board has at least the potential of damaging, if not destroying, his reputation. The appellant J.G. has a similar interest at stake.
[10] As in Megens, in the present case there was a sharp conflict in the evidence. The complainant, S.G., said that she had been the victim of sexual touching in Mr. C.P.’s car en route to Cambridge in August and November, 1991. There was evidence at the trial and before the Board that showed that the trip to Cambridge in August was on August 14 and the return trip was on August 25. This evidence showed that on those trips Mr. C.P. and S.G. were accompanied, on the 14th by J.P., age 21 and T.P., age 12; and on the 25th by those relatives and also by Mrs. P. and their children. There was thus no evidence of any opportunity for these alleged events to occur. The other occasions alleged were in November 1991. There was evidence from several witnesses that S.G. did not go to Cambridge at all during that month.
[11] As to the allegations against J.G., there was evidence before the Board that S.G. had entered a turbulent period of her young life and had recently experienced sexual intercourse for the first time; that there was trouble with the boy involved and resulting trouble between J.G. and S.G.; and that S.G. had a desire to live free of the rules that J.G. sought to impose. There was evidence in the papers before the Board that others who lived in the house denied that S.G. had been mistreated, beaten or denied food; rather, she had gone on a hunger strike to protest restrictions on her activities.
[12] Regrettably, the Board did not weigh any of this evidence in its reasons or otherwise disclose how it reached the decision to prefer the uncorroborated evidence of S.G. over the other evidence. The Board certainly had the right to accept that evidence, but it ought to have explained how it came to that conclusion. Instead, it merely stated that it had reviewed the evidence and found the allegations established. With great respect, those are not reasons. They are the conclusions which should flow from the missing reasons. The absence of reasons was discussed by Bastarache J., then of the New Brunswick Court of Appeal, in Boyle[^4], where, at 156, he said:
I am of the view that, in the absence of a true analysis of the evidence, the appeal process is frustrated and that the duty to give reasons cannot be met simply by listing the evidence considered.
and at page 158:
As mentioned in De Smith at p. 467[^5], a consideration of the purpose of the duty [to give reasons] is sufficient to establish the nature of the requirement. Reasons must explain to the parties why the Tribunal decided as it did; it must avoid the impression that its decision was based on extraneous considerations or that it did not consider part of the evidence. Reasons must also be sufficient to enable the Court of Appeal to discharge its appellate function; the Tribunal must therefore set out the evidence supporting its findings in enough detail to disclose that it has acted within jurisdiction and not contrary to law.
[13] These comments describe what is missing in the present case. Without more, neither the parties nor this court can understand the way in which the decision was reached.
[14] The appellants submitted that the hearing was flawed in another way. The Board relied upon a medical report from Dr. Grant at the hearing and in the reasons, but it was not disclosed to the appellants at any time. The respondent Board seeks to justify this refusal to disclose by reference to privacy concerns. In our view, the complainant put into issue whether she had suffered a beating from the appellant J.G.. This doctor examined her on December 17, 1991, some three days after the date given for the alleged assault, and reported, in what the Board described as ‘rather sketchy notes’, that there was a ‘sign of physical abuse’. There are two points raised by this situation.
[15] First, without going into the detail of the privacy legislation, the requirements of a fair hearing include the right to know the case to be met. If the complainant was unwilling to waive whatever privacy rights she had, the medical report should not have gone in to evidence or been relied on in any way. It is simply unfair to act in this way.
[16] Second, there was evidence that S.G. had been in a fight at school shortly before. The Board does not consider whether this evidence affects the weight to be given to the doctor’s report. Had the report been given to counsel there could have been cross-examination or submissions as to whether the sign(s) observed were more consistent with the use of a broom stick or with a fight.
[17] The Board submitted that medical reports are inherently confidential and that, if they are to be released to the appellants, there must be a balancing of the “one party’s right to confidentiality with the other party’s right to natural justice” and opportunity to participate fully in the hearing. The problem with this submission is that the record is devoid of any such balancing. The Board simply uses the undisclosed and untested statement from the doctor in its reasons to corroborate the testimony of the complainant. In a credibility case, this is a serious error.
[18] We agree with the contention of the respondent Board that it is not bound by the strict rules of evidence. It can, for example, accept hearsay if it wishes. But it still must give a fair hearing and relying on evidence kept secret from the appellants is not permissible. We agree with the appellants that this error rendered the hearing unfair to J.G..
[19] Finally, we observe that on page 6 of the reasons, there are eight lines blacked out. This was apparently done when the reasons were sent to counsel for the appellants. Apparently, the Board does not understand that the parties and this court are entitled to know their reasons. If there is sensitive material, there is the possibility of sealing the file to the public, but the parties are not to be kept in the dark about why they lost the case.
[20] The appeal is allowed and the decision quashed. If the Board decides to hold a fresh hearing, it will be before a Board differently constituted. The appellants should have their costs in this court and below fixed at $3500.
Lane, J
Pitt, J.
Molloy, J.
DATE: December 2004
[^1]: Compensation for Victims of Crime Act, R.S.O. 1990 c. C24. [^2]: Baker v. Canada (Minister of Citizenship), 174 D.L.R. (4th) 193 (S.C.C.) at 219. [^3]: Megens v. Ontario Racing Commission (2003), 64 O.R. (3rd) 142 (Div. Ct.) [^4]: Boyle v. New Brunswick (Workplace Health, Safety & Compensation Commission), (1996), 39 Admin. L.R. (2d) 150. [^5]: De Smith, Woolf and Jowell, Judicial Review of Administrative Action, 5th ed.; London: Sweet & Maxwell, 1995.