CITATION: Ramirez v. Criminal Injuries Compensation Board, 2012 ONSC 5355
DIVISIONAL COURT FILE NO.: 609/11
DATE: 20120921
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, LAX AND DUCHARME JJ.
BETWEEN:
ROCIO RAMIREZ
Appellant
– and –
CRIMINAL INJURIES COMPENSATION BOARD
Respondent
In Person
David E. Fine, for the Respondent
HEARD at Toronto: September 21, 2012
aston j. (ORALLY)
[1] This is a statutory appeal of a decision of the Criminal Injuries Compensation Board dated October 6, 2011.
[2] The appellant, Ms. Ramirez argues that the Board erred in law in holding that it could not find her to be a victim of a crime. Additionally, she submits that procedural fairness was not afforded by the Board.
[3] Ms. Ramirez fled Columbia as a refugee in 2005. From June 16 to August 29, 2005, she resided at Adam House, a residence for refugees in Toronto. She alleges that she suffered incidents of sexual assault on August 22, 24 and 25, 2005 while staying there.
[4] Some years later, in March 2009, Ms. Ramirez brought an application to the Criminal Injuries Compensation Board. Due to the limitation period under the Compensation for Victims of Crime Act, Ms. Ramirez completed an Extension Request Form. In June 2009 the Board notified Ms. Ramirez that in order to assess the extension request, the Board required further information from her regarding the number of assailants.
[5] Counsel for Ms. Ramirez at that time informed the Board that she could not provide further information due to a lack of recollection regarding the number of assailants because of the fact that she had been drugged. In May 2010, the Board determined that it had been unable to acquire relevant information from the police and asked Ms. Ramirez for further information in order to assist with the extension request.
[6] Ultimately the extension request was granted and Ms. Ramirez was given thirty days to complete the various forms. On March 8, 2011, the Board informed her that a hearing could be scheduled for her application. She was provided with a Notice of Oral Hearing, a form that informed her that she was required to provide any additional information she wished to submit to the Board at least thirty days in advance of the hearing.
[7] The hearing took place on May 26, 2011. The Board found that Ms. Ramirez “provided very vague descriptions of the incidents” and “was unable to put the recalled events in some sort of sequential order.” See the decision of the Board at pages 4 and 5. The Board also considered the documentary information that she presented at that time.
[8] The Board did find that Ms. Ramirez sincerely believed all of the allegations that she made. However, the Board determined that it was “unable to accept the reliability of the applicant’s evidence due to the vague nature of her recollection.” The Board could not find on a balance of probabilities that the appellant in fact was a victim within the meaning of s.5(a) of the Compensation for Victims of Crime Act. In October 2011, Ms. Ramirez made a request that the Board reconsider its decision. That request was denied.
[9] This is an appeal as of right to the Divisional Court on questions of law under s.23 of the Compensation for Victims of Crime Act. An appeal is permitted only on a question of law and there is no jurisdiction on appeal for this Court to intervene in factual findings by the Board or in its findings regarding reliability of evidence.
[10] The parties agree that the standard of review is correctness. However, we note that the standard of review is a principle that has been held to only apply to substantive review rather than alleged breaches of procedural fairness. In Ahmed v. Criminal Injuries Compensation Board (2008) 90 O.R. (3d) p.475, Jennings J. confirmed that “where a Tribunal’s decision is attacked on a basis of a denial of natural justice, it is not necessary for the Court to engage in an assessment of the standard of review.”
[11] There are two issues for us to determine. First, did the Board err in law in its decision? Second, did the Board breach procedural fairness in failing to provide the appellant with a therapy report form or in some other way?
[12] In order to be found to be a victim under s.5 of the Compensation for Victims of Crime Act, the appellant must establish that she suffered psychiatric or psychological injury resulting from violent acts. The appellant believes that she did this. The appellant submits that while her testimony before the Board was vague, it was vague as a result of her psychological injuries and because she had been drugged. Moreover, the appellant suggests that the reason for a lack of clear evidence is rooted in delay in the proceedings and the loss of material evidence including police records that she claims ought to exist. Even if the appellant is correct in this regard, these are still a question of fact, not a question of law. This Court cannot weigh the evidence or substitute its own opinion for that of the Board on questions of fact.
[13] Along the same lines, the appellant submits that had she had an opportunity to adduce the letter of Dr. Vidal, dated February 7, 2012, or a letter similar to that, Dr. Vidal would have been able to confirm a diagnosis of “mental or nervous shock as a result of crimes of violence.” We have received and considered that letter and the other documents submitted today on the motion for fresh evidence which we have allowed.
[14] Although there are numerous reports and letters which describe the appellant’s allegations and her psychological condition, they are hearsay on the issue of whether or not any assault actually happened. R. v. Abbey, 1982 25 (SCC), [1982] 2 S.C.R. 24, stands for the proposition that while it is appropriate for doctors or counsellors to refer to things told to them by their patient in the course of explaining her expert opinion, it is an error of law to accept those statements as proven fact. The doctors themselves are relying on the claims of the alleged victim. An appellant like Ms. Ramirez is still expected to independently prove the allegations.
[15] The Board did have the discretion to accept hearsay evidence under s.15 of the Statutory Powers Procedure Act and the Board is not bound by strict rules of evidence. The Board could have accepted hearsay evidence, however the Board is not required to accept any evidence before it.
[16] On the first issue, the appellant has failed to establish any error of law. The second issue is whether the Board breached procedural fairness in failing to provide the appellant with a therapy report form or in some other way.
[17] In support of the failure to provide the therapy report form, Ms. Ramirez cites the Ahmed case already referred to. In Ahmed, the Board had denied an intended applicant’s counsel an entire claims package. It was not a case of the Board failing to provide a single form but rather the Board intentionally refusing to permit an application to be made, under Rule 1.7 of the Board’s Rules of Procedure. Jennings J. found that this constituted a violation of procedural fairness and he remitted the matter back to the Board with the direction to issue a claims package. In this case the Board did provide Ms. Ramirez with necessary forms and provided her with an opportunity to submit further written statements.
[18] The appellant also points to delay and the failure to adjourn the hearing for further or better evidence as factors denying her procedural fairness.
[19] We note first of all that the appellant was granted an extension to file her claim and that she has failed to establish that the Board itself was responsible for any delay. Secondly, we would observe that the appellant never requested an adjournment during the hearing. Moreover, the fresh evidence now admitted on the appellant’s appeal would not have established the necessary connection between her injuries and an actual sexual assault.
[20] We are not persuaded that there has been any breach of procedural fairness. The appeal is therefore dismissed.
COSTS
[21] On behalf of the panel I have endorsed the Record, “For oral reasons given and recorded, this appeal is dismissed. No costs.”
ASTON J.
LAX J.
DUCHARME J.
Date of Reasons for Judgment: September 21, 2012
Date of Release: October 2, 2012
CITATION: Ramirez v. Criminal Injuries Compensation Board, 2012 ONSC 5355
DIVISIONAL COURT FILE NO.: 609/11
DATE: 20120921
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, LAX AND DUCHARME JJ.
BETWEEN:
ROCIO RAMIREZ
Appellant
– and –
CRIMINAL INJURIES COMPENSATION BOARD
Respondent
ORAL REASONS FOR JUDGMENT
ASTON J.
Date of Reasons for Judgment: September 21, 2012
Date of Release: October 2, 2012