COURT FILE NO.: 134/09
DATE: 20091104
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
WHALEN, DAMBROT AND SWINTON JJ.
B E T W E E N:
GABRIEL KHOURY
Applicant
- and -
CRIMINAL INJURIES COMPENSATION BOARD
Respondent
Michelle T. Beckow, for the Applicant
David H. Fine, for the Respondent
HEARD at Toronto: November 4, 2009
SWINTON J.: (Orally)
[1] The applicant seeks judicial review of a decision of the Criminal Injuries Compensation Board dated February 27, 2009 denying his claim for compensation, pursuant to s.17(2) of the Compensation for Victims of Crime Act, R.S.O. 1990, c.C.24.
[2] An appeal lies to this Court from a decision of the Board pursuant to s.23 of the Act but only on a question of law.
[3] Judicial review is a discretionary remedy. A party should exhaust his or her rights to appeal before seeking judicial review unless there are special circumstances (see Khan v. Ontario (Director of Vehicle Inspection Standards), (2004) 13078 (Div. Ct.) at paragraph 5).
[4] As the applicant has not satisfied us that there are special circumstances, the application for judicial review should be dismissed. The applicant has an adequate alternative remedy under s.23 of the Act.
[5] Nevertheless, the Court has proceeded to hear the applicant’s case as an appeal pursuant to s.23. An appeal lies on a question of law alone, and it must be determined on the basis of the evidence before the Board and not the new affidavit in the Application Record.
[6] The standard of review on questions of law is correctness (see Trudeau v. Ontario (Criminal Injuries Compensation Board) (2007) CarswellOnt 8330 (Div. Ct.) at para. 4).
[7] Pursuant to s.17(2) of the Act, the Board may, in its discretion, refuse to make an order of compensation or order a reduced amount of compensation where it is satisfied that the applicant has refused reasonable co-operation with, or fails to report promptly the offence to, a law enforcement agency.
[8] While the Board is required to undertake a proportionality analysis pursuant to s.17(1) (see Dalton v. Ontario (1982), 1982 2075 (ON SC), 36 O.R. (2d) 394 (Div. Ct.)), it is not required to make such an analysis under s.17(2).
[9] The Board made no error of law. It found that the applicant failed to report the incident in which he was injured on October 28, 2006 to police until January 2007. There was evidence that he told his friend not to report the assault to the police. There is no basis for this Court to interfere with the Board’s findings of fact nor its exercise of discretion.
[10] While the applicant relies on Trudeau v. Ontario, above, that case is distinguishable on the facts, as there was evidence of a threat in that case. In the present case, the applicant’s fear of retribution is subjective and not based on any threats.
[11] Therefore, both the application for judicial review and the appeal are dismissed. There are no costs.
SWINTON J.
WHALEN J.
DAMBROT J.
Date of Reasons for Judgment: November 4, 2009
Date of Release: November 9, 2009
COURT FILE NO.: 134/09
DATE: 20091104
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
WHALEN, DAMBROT AND SWINTON JJ.
B E T W E E N:
GABRIEL KHOURY
Applicant
- and -
CRIMINAL INJURIES COMPENSATION BOARD
Respondent
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: November 4, 2009
Date of Release: November 9, 2009