Ahmed v. Criminal Injuries Compensation Board

90 O.R. (3d) 475

Ontario Superior Court of Justice,

Divisional Court,

Jennings, Kiteley and Low JJ.

June 20, 2008

Administrative law -- Procedural fairness -- Applicant alleging that he was assaulted by police officers -- Criminal Injuries Compensation Board refusing to issue claim form to applicant to enable him to file claim for compensation on basis that no criminal charges were brought against police officers -- Board stating that it did not have sufficient credible evidence that officers assaulted applicant or that they were acting outside scope of their duty -- Application for judicial review granted -- Board prejudging applicant's claim under guise of performing its gatekeeping function under rule 1.7 of its Rules of Procedure.

The applicant alleged that he was assaulted by police officers in the course of an arrest. His lawyer wrote to the Criminal Injuries Compensation Board detailing the assault allegations and requesting an application form to enable the applicant to file a claim for compensation. The Board refused to issue a claim form on the grounds that no charges were brought against the police officers and that the Board did not have sufficient credible evidence that the officers assaulted the applicant or that they were acting outside the scope of their duty. The applicant applied for judicial review of that decision.

Held, the application should be granted.

Under rule 1.7 of its Rules of Procedure, the Board had the power to refuse to issue an application form if the claimant had failed to raise any issue within the Board's jurisdiction or had failed to disclose a claim under the Act. The letter from the applicant's lawyer set out facts and particulars which, if proven, satisfied the requirements of rule 1.7. Under s. 16(1) of the Compensation for Victims of Crime Act, R.S.O. 1990, c. C.24, an order for compensation may be made whether or not any person is prosecuted for the offence giving rise to the injury. By prejudging the merits of the applicant's claim under the guise of performing its gatekeeping function under rule 1.7, the Board denied the applicant procedural fairness.

APPLICATION for a judicial review of a Criminal Injuries Compensation Board decision. [page476]

Cases referred to Dunsmuir v. New Brunswick, [2008] S.C.J. No. 9, 2008 SCC 9, 291 D.L.R. (4th) 577, 329 N.B.R. (2d) 1, 64 C.C.E.L. (3d) 1, 164 A.C.W.S. (3d) 727, EYB 2008-130674, J.E. 2008-547, [2008] CLLC Â220-020, 372 N.R. 1, 69 Imm. L.R. (3d) 1; Gismondi v. Ontario (Human Rights Commission), 2003 21371 (ON SCDC), [2003] O.J. No. 419, 169 O.A.C. 62, 50 Admin. L.R. (3d) 302, 23 C.C.E.L. (3d) 84, 120 A.C.W.S. (3d) 492 (Div. Ct.) Statutes referred to Compensation for Victims of Crime Act, R.S.O. 1990, c. C.24, ss. 5, 8, 16(1) Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 25.1 [as am.] Rules and regulations referred to Criminal Injuries Compensation Board, Rules of Procedure (April 1, 2008), online: http:, rules 1.7, 1.8

Barry B. Swadron, Q.C., and Ameena Sultan, for appellant. David E. Fine, for respondent.

The judgment of the court was delivered by

[1] JENNINGS J.: -- At the conclusion of the hearing of this matter on June 5, 2008, the panel indicated that the application for judicial review would be allowed for reasons to follow. These are those reasons.

[2] The applicant seeks judicial review of the decision of the Chair of the Criminal Injuries Compensation Board dated January 16, 2008, refusing to issue to the applicant the necessary forms to enable him to file a claim for compensation. The applicant submits that in refusing to provide claim forms the Board exceeded its jurisdiction and denied the applicant procedural fairness.

[3] The applicant seeks an order in the nature of mandamus requiring the Board to issue a claims package to the applicant for completion and filing.

Background

[4] The applicant is disabled due to a brain injury. He walks with the assistance of a cane. He has difficulty comprehending what is said to him by other persons.

[5] On February 21, 2007, he became involved in an altercation with a parking enforcement officer during the course of which the applicant struck the officer's car with his cane causing damage to the vehicle. The police were called and arrested the applicant. The applicant claims that the police used excessive force in carrying out the arrest. He alleges he was handcuffed, thrown down on the road and repeatedly kicked. He alleges he was sworn at and that his head was banged against the road a number of times.

[6] He was transported to 41 division and charged with mischief over $5,000, assault with a weapon and possession of a dangerous weapon.

[7] Subsequently, all four charges were stayed at the request of the Crown.

[8] The applicant lodged a complaint with the Toronto Police Services, but the investigation report found that the applicant's complaint was not substantiated. No criminal charges were brought against the officers.

[9] On November 28, 2007, the applicant's counsel, Mr. Swadron wrote to the Board setting out with considerable detail the allegations of the assault, and the particular injuries sustained by [page477] the applicant. He concluded his letter with a request for an application form for criminal injuries compensation.

[10] On December 12, 2007, a senior claims services representative at the Board wrote to Mr. Swadron indicating in part:

There is no indication that charges were brought against the officers in relation to this incident. In the absence of charges, it is assumed that the officers were acting in accordance with the commission of their duties. For that reason, the request for an application form was refused.

[11] Further correspondence between Mr. Swadron and the Board ensued, culminating in the Chair's letter to Mr. Swadron of January 16, 2008, in which the Chair acknowledged "your correspondence dated December 20, 2007, requesting that the Board reconsider its decision dated December 18, 2007, to deny Mr. Ahmed a claims package for an incident that occurred on February 21, 2007". (Although Mr. Swadron wrote to the Board on that date no such request for reconsideration was made.)

[12] The letter continued in part as follows:

In your letter dated December 20, 2007, you advised the Board that your client did lay a complaint with the Toronto Police Service, however the investigation report found that his complaint was not substantiated. As a result, there is no indication that charges were brought against the officers in relation to this incident. The Board does not have sufficient credible evidence to establish that the arresting officers assaulted Mr. Ahmed, or that they were acting outside the boundaries of their law enforcement duties. As such, the Board maintains its decision and will not issue a claims package in this matter. (Emphasis added)

Key Legislation

[13] Section 5 of the Compensation for Victims of Crime Act, R.S.O. 1990, c. C.24 (the "Act") provides the Board's authority to pay compensation for injuries:

5. Where any person is injured or killed by any act or omission in Ontario of any other person occurring in or resulting from, (a) the commission of a crime of violence constituting an offence against the Criminal Code (Canada), including poisoning, arson, criminal negligence and an offence under section 86 of that Act but not including an offence involving the use or operation of a motor vehicle other than assault by means of a motor vehicle; . . . . . . . .

the Board, on application therefor, may make an order that it, in its discretion exercised in accordance with this Act, considers proper for the payment of compensation to, (d) the victim; . . . [page478]

[14] Section 8 of the Act provides that where an application is made under s. 5"the chair of the Board shall refer the application" for a hearing.

[15] Section 16(1) of the Act provides that compensation does not depend on a criminal conviction:

16(1) An order for compensation may be made whether or not any person is prosecuted for or convicted of the offence giving rise to the injury or death but the Board may, on its own initiative or upon the application of the Minister, adjourn its proceedings pending the final determination of a prosecution or intended prosecution.

[16] The Rules of Procedure (enacted pursuant to the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 25.1), permit the Board to refuse to issue an application:

1.7 Refuse to Issue or Accept an Application

(1) The Board, in exercising its discretion, may refuse to issue an application for compensation or may refuse to accept an application for compensation under its Act, on the grounds that: (a) the applicant has failed to raise any issue which is within the jurisdiction of the Board under the Act; (b) the applicant has failed to disclose a claim under the Act; (c) the Act does not apply to the subject matter raised in the application.

(2) An applicant who disagrees with the decision of the Board to issue or accept an application may ask the Board to review the application, in which case the chair, vice-chair, or appointed member of the Board shall decide whether to accept the application or refuse it.

Issues

[17] (1) Did the Board err in refusing to issue a claims package? (2) Does the failure of the Board to issue a claims package constitute denial of procedural fairness?

Standard of Review

[18] Although neither of the parties directly address the question of the standard of review, we note that in Dunsmuir v. New Brunswick, [2008] S.C.J. No. 9, 2008 SCC 9 the Supreme Court held that deference will usually apply to questions of discretion and to questions where the legal and factual issues are intertwined and cannot easily be separated. However, in Gismondi v. Ontario (Human Rights Commission), 2003 21371 (ON SCDC), [2003] O.J. No. 419, 169 O.A.C. 62 (Div. Ct.), this court held that where a tribunal's [page479] decision is attacked on the basis of a denial of natural justice, it is not necessary for the court to engage in an assessment of the standard of review.

Analysis

[19] The appellant did not challenge the power of the Board to enact rule 1.7 of the Rules of Procedure enacted pursuant to the powers given to it under the Statutory Powers Procedure Act, giving to the Board the discretion to refuse to issue an application on one or more of three specified grounds.

[20] It is the position of the respondent that the Board did no more than exercise its discretion pursuant to rule 1.7 when it refused to provide an application form to the applicant.

[21] I disagree.

[22] It is not disputed that rule 1.7(1) establishes a threshold over which a proposed applicant must cross before he or she can receive the Board's application form which, we are told, must be completed in order to put a claim before the Board. That threshold, however, is a low one designed merely to establish that the proposed claim is one which falls within the jurisdiction of the Board.

[23] Clearly, Mr. Swadron's letter sets out facts and particulars of injuries which, if proven, satisfy the requirements of rule 1.7(1).

[24] In declining to provide an application form because no charges were brought against the police officers in relation to the incident, the Board ignores the specific provisions of s. 16(1) of the Act.

[25] Further, in stating that the Board "does not have sufficient credible evidence to establish that the arresting officers assaulted Mr. Ahmed", the Board created for itself an evidentiary standard which does not exist in rule 1.7. That rule makes no reference to credible evidence but simply to the disclosure of a claim within the jurisdiction of the Board.

[26] By its somewhat baffling insistence on "credible evidence" the Board must be taken to have determined that the facts put before it by the applicant's counsel cannot be proved. Nowhere can I find authority in the enabling legislation or the rules for that degree of pre-judgment.

[27] We were informed during the hearing that the Board's form which must be completed before an application for compensation can be considered, requires extensive detail on the facts giving rise to the claim, as well as the provision of the documentation to support injuries allegedly sustained. If the Board required more particulars of the injuries sustained, such as copies of hospital records, over that provided in Mr. Swadron's initial letter, it might [page480] have asked. Otherwise, Mr. Swadron was entitled to believe that he was to supply that information with the application.

[28] It must also be noted that rule 1.8 and 1.8(1) of the Board's Rules of Procedure enabled the Board to dismiss an application without a hearing upon notice to the applicant who may make submissions opposing the intention to dismiss. The applicant's counsel concedes that power exists and may well be exercised in this case. I accept his submission however that the power to dismiss without a hearing can only be exercised after considering the application. I also accept counsel's submission that what the Board has attempted to do in this case is to elevate the threshold procedural controls in rule 1.7(1) to a level of discretionary authority which cannot be exercised in the absence of a completed application.

[29] Regrettably, what permeates this decision of the Board is the suggestion that police officers act within the scope of their authority when making arrests, and that therefore their conduct is to be considered in a manner differently than that which applies to other persons. It is to be noted that s. 5 of the Act commences with the phrase "[w]here any person is injured or killed by any act or commission in Ontario of any other person . . ." [emphasis added] resulting from the commission of a crime of violence that constitutes an offence under the Code, the Board may order compensation. The phrase "other than a police officer" so as to modify "any other person" is nowhere to be found.

[30] I therefore conclude that by prejudging the merits of the applicant's claim under the guise of its gate-keeping function set out in rule 1.7(1) and refusing to issue an application, the Board has denied to the applicant procedural fairness.

[31] The application for judicial review is granted. The matter is remitted to the Board with the direction that it issue to the applicant a claims package forthwith.

[32] We have been advised by counsel that an agreement has been reached on costs, and no order need be made.

Application granted.