ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
A.C.J.S.C. CUNNINGHAM, E. MACDONALD AND SWINTON JJ.
B E T W E E N:
RYAN NUSSBACHER, Executor of the Estate of IVAN NUSSBACHER, Deceased
Applicant
- and -
THE CRIMINAL INJURIES COMPENSATION BOARD
Respondent
George S. Glezos and Rebecca Case, for the Applicant
David E. Fine, for the Respondent
HEARD at Toronto: October 30, 2006
swinton J.: (Orally)
1The applicant, Ryan Nussbacher, Executor of the Estate of Ivan Nussbacher, deceased, has brought an application for judicial review in respect of the administrative decision of the Criminal Injuries Compensation Board to cancel a hearing that was originally scheduled to deal with an application for compensation made by Ivan Nussbacher. Prior to the hearing, Mr. Nussbacher died of causes unrelated to an alleged assault for which compensation was claimed as a victim of crime.
2The standard of review in this case is correctness, given that this application involves questions of law and the jurisdiction of the Board.
3The Compensation for Victims of Crime Act, R.S.O. 1990, c. C.24, does not alter the common law principle that a right to compensation for injuries suffered by a person terminates with the death of the person. While s.38(1) of the Trustee Act, R.S.O. 1990, c. T.23, modified the common law principle that a personal action dies with the person, that section does not apply in the circumstances of this case. “Action” in s.38(1) refers to civil proceedings between a plaintiff and defendant (see Royal Canadian Legion Norwood (Alberta) Branch 178 v. Edmonton (City) (1994), 1994 ABCA 37, 16 Alta. L.R. (3d) 305 (C.A.) at paragraph 27). Section 38(1) does not refer to proceedings before an administrative tribunal to obtain compensation from a public fund.
4Therefore, the Board correctly decided to cancel the hearing on the basis of the common law maxim that Ivan Nussbacher’s claim for compensation died with him.
5The applicant’s reliance on the principle of legitimate expectations is unfounded. The Board made no representation to the Nussbacher estate that notwithstanding Mr. Nussbacher’s death, it would continue with a hearing for compensation.
6Two criteria must be satisfied before the doctrine of legitimate expectations applies: a binding undertaking to follow a set of procedures and the fact that the undertaking in question must not conflict with the tribunal’s statutory duty (Addy v. Canada (Commission of Inquiry into the Deployment of Canadian Forces to Somalia)) (1997), 1997 5296 (FC), 149 D.L.R. (4th) 118 (F.C.T.D.) at para. 49). The applicant has provided no evidence that it is the official practice of the Board to hold hearings in circumstances where an applicant has died of causes unrelated to the crime of violence for which compensation is sought.
7Therefore, the application for judicial review is dismissed.
A.C.J.S.C. CUNNINGHAM
8Costs fixed at $3,500.00, all inclusive.
A.C. J. S.C. CUNNINGHAM
E. MACDONALD J.
SWINTON J.
Date of Reasons for Judgment: October 30, 2006
Date of Release: November 3, 2006
COURT FILE NO.: 312/05
DATE: 20061030
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
A.C.J.S.C. CUNNINGHAM, E. MACDONALD AND SWINTON JJ.
B E T W E E N:
RYAN NUSSBACHER, Executor of the Estate of IVAN NUSSBACHER, Deceased
Applicant
- and -
THE CRIMINAL INJURIES COMPENSATION BOARD
Respondent
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: October 30, 2006
Date of Release: November 3, 2006