CITATION: Dekany v. Criminal Injuries Compensation Board, 2011 ONSC 5787
DIVISIONAL COURT FILE NO.: 077/11
DATE: 20111003
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Jennings, Pardu, Harvison Young JJ.
BETWEEN:
Katalin Dekany
Appellant
– and –
Criminal Injuries Compensation Board
Respondent
In Person, the Appellant
David E. Fine, for the Respondent
HEARD: September 27, 2011
THE COURT
[1] The appellant, Katalin Dekany, appeals a decision of the Criminal Injuries Compensation Board. The decision was made by Board Members Stanley Newman and Charlotte McQuade on January 20, 2011 (ABC, Tab B). The appeal is as of right pursuant to s. 23 of the Compensation for Victims of Crime Act, R.S.O. 1990, c. C. 24 (“the Act”).
[2] The appellant was a victim of domestic abuse. The Board accepted the evidence that she had suffered abuse and assaults by her husband and awarded her $6000 for pain and suffering, and $1200 for future counselling expenses. It also found that she had not established, on a balance of probabilities, that all of her physical complaints (such as headaches, scoliosis and arthritis) were caused by the assaults. The Board denied compensation for chiropractic treatment, physiotherapy, and massage therapy. It also denied compensation for loss of income.
[3] The appellant appeals from this decision, seeking:
• payment for 20 sessions each of chiropractic, physiotherapy, and massage therapy;
• a lump sum of $16,000 representing loss of income.
[4] An appeal lies only on a question of law, and the respondent concedes that the standard of review is correctness: Masakeyash v. Criminal Injuries Compensation Board, 2006 11440 (ON SCDC), [2006] O.J. No. 1429, at para. 7.
[5] The appellant alleges that the Board erred:
(i) in denying compensation for chiropractic treatment, physiotherapy, and massage therapy;
(ii) in its application of the medical evidence in failing to find that the assaults caused the permanent physical injuries complained of; and
(iii) in denying compensation for loss of income.
[6] At the outset, it is important to note that the Board has a broad discretion under the Act to fashion awards, as the compensation paid to a victim of crime is paid out of public funds: Leung v. Ontario (Criminal Injuries Compensation Board), 1995 CarswellOnt 1248 (Div. Ct.) at para. 5. The Act is not intended to make an applicant for compensation whole or to provide full indemnity to an applicant: Berlingieri v DeSantis, 1980 CarswellOnt 537 (C.A.) at para. 16.
[7] With respect to the first error alleged, we do not agree that the Board erred in denying compensation for the chiropractic treatment, physiotherapy and massage treatment. This was clearly within the discretion of the Board, having found that the evidence had not established on a balance of probabilities that the assaults had caused the injuries for which such treatment was sought, such as the arthritis. We do not agree that the absence of any other explanation for these physical treatments should have resulted in the conclusion that the assaults caused these conditions. The Board committed no error in considering whether the evidence established that the assaults had caused these physical conditions on a balance of probabilities, and we see no legal error in the application of the test by the Board. The balance of probabilities is the standard of proof on an application for such compensation: Morris et al v. Attorney General of New Brunswick, (1975) 1975 1601 (NB CA), 12 NBR (2d) 520 (CA), at para. 23.
[8] The second error alleged is related to the first. The Board did not err in finding that the appellant had not established that the assaults had caused the permanent physical injuries complained of. We note that the Board did exercise its discretion to award Ms. Dekany $1200 for future therapy and counselling, clearly recognizing the emotional or psychological impact of the abuse she suffered. That is a different matter from finding, for example, that the assault caused the headaches or the arthritis.
[9] With respect to the third error, Ms. Dekany argues that the Board erred in failing to consider her loss of income as a loss of capacity to earn income. She argues that she has not worked since the October, 2008 assault, and the uncontroverted medical evidence before the Board was that “as a result of the constellation of injuries suffered at the hands of her ex-husband, she is not suitable for employment…”. She argues before this court that the Board erred in failing to consider her “track record” of regular contract employment as a sessional professor and tutor, evidenced by the tax returns submitted for 2006 and 2007, teaching in the winter term each year. She argued that it is unfair for the Board to take the position that it will only consider such claims for loss of future income if there is “active employment” at the time of the assault or a firm commitment from a prospective employee, because this position fails to take into account circumstances where institutions such as colleges or universities, while renewing such contracts year after year, do not commit to doing so very far in advance of the start dates. The respondent submits that there is no evidence that she lost work as a result of the assaults, as she was not working at that time.
[10] The Board addressed the loss of income claim as follows:
It is the usual practice of the Board to consider awarding compensation for income loss only in situations where an Applicant was actively employed at the time of the incident unless the Applicant can prove that she had a firm offer of employment or contract specifying the date of commencement of employment or contract which ultimately could not be fulfilled on account of the injuries sustained in direct result of the incident. The Board did not receive any written confirmation that the Applicant was guaranteed such a contract in January, 2009. Moreover, with respect to any other teaching/consulting the Applicant engaged in, no written confirmation of any future confirmed contracts was provided to the Board. (Board decision, page 15).
[11] We appreciate the fact that the reasons of a lay Board are not to be subjected to the same scrutiny as those of one made up of lawyers. Having said that, the above passage raises the concern that the Board policy was to restrict loss of income claims to applicants who were either actively employed at the time of the injuries sustained, or who had confirmed offers, and that it may have applied such a policy in this case, thus failing to consider the possibility that applicants who are regularly but casually employed may be able to present evidence of past earnings that could establish that future earnings could be anticipated but had been affected because of the effects of the injuries. A policy that, in effect, ends the inquiry into the loss of income issue after determining that there was neither active employment nor a firm offer at the time of the injury suffered would fetter the discretion of the Board: Sheehan v. Ontario (Criminal Injuries Compensation Board) 1974 439 (ON CA), 1974 CarswellOnt 552 (C.A.) at paras. 13 and 14.
[12] Accordingly, and despite our view that the Board’s decision, subject to this concern, is detailed and well-written, we would remit the matter to the Board so that it can address the question of whether the appellant might have established some loss of income claim despite the absence of a confirmed written contract.
[13] In conclusion, we dismiss the appeal on all issues other than the loss of income, and remit this issue for the Board’s reconsideration as set out above.
[14] Costs payable to the applicant in the amount of $500.00.
Jennings J
Pardu J.
Harvison Young J.
Released: October 3, 2011
CITATION: Dekany v. Criminal Injuries Compensation Board, 2011 ONSC 5787
DIVISIONAL COURT FILE NO.: 077/11
DATE: 20111003
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Jennings, Pardu, Harvison Young JJ.
BETWEEN:
Katalin Dekany
Appellant
– and –
Criminal Injuries Compensation Board
Respondent
REASONS FOR JUDGMENT
The Court
Released: October 3, 2011