Bunch v. Criminal Injuries Compensation Board, 2014 ONSC 381
CITATION: Bunch v. Criminal Injuries Compensation Board, 2014 ONSC 381
DIVISIONAL COURT FILE NO: 600/12
DATE: 2014-02-05
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
Re: Errol Bunch, Appellant
- and -
Criminal Injuries Compensation Board, Respondent
Before: Kiteley, Rady and Whitaker JJ.
Counsel: David E. Fine, for the Respondent Errol Bunch, On his Own Behalf
Heard at Toronto: January 15, 2014
ENDORSEMENT
Whitaker J.
Introduction
[1] This is an appeal from a decision of the Criminal Injuries Compensation Board (the "Board"), denying benefits claimed by the appellant, Mr. Errol Bunch ("Bunch").
[2] Bunch sought compensation under the Compensation for Victims of Crime Act R.S.O. 1990, Chapter C.24 (the "Act"). The claim for compensation relates to two incidents where Bunch was assaulted in his apartment building by another resident.
[3] In denying the claim, the Board considered Bunch's lengthy criminal record, his credibility and reliability and what the Board considered to be his "reckless behaviour". The Board noted that Bunch had in the past been frequently involved in violent crime as a perpetrator.
[4] For reasons provided here, this appeal is dismissed.
Overview
[5] The facts are brief and uncontested.
[6] On January 29, 2011 while standing by the garbage chute in his apartment building, Bunch was assaulted by another resident known to him. Bunch stated the other resident struck him on his back and head with a large stick.
[7] Police were called to the scene and spoke to Bunch and the other resident. Police considered Bunch to be uncooperative and his account of events to be unreliable. Bunch claimed to have suffered a broken wrist and then left the scene without giving a statement. He did not attend for treatment.
[8] Emergency Medical Services ("EMS") staff examined Bunch at the scene before he left. EMS decided that emergency care was not necessary.
[9] No charges were laid.
[10] The second incident took place on May 3, 2012.
[11] The same resident from the January incident assaulted Bunch in the lobby of the apartment building with a baseball bat. Bunch was hit with the bat on his back, legs and head.
[12] Bunch called the police. He gave a statement and was taken to hospital where he had surgery for a fractured finger.
[13] Police investigation concluded that Bunch had been struck with a metal pipe and had suffered a fractured finger.
[14] The alleged offender was charged with assault causing bodily harm and assault with a weapon. According to the decision, Bunch said that the trial had been scheduled for June 25, 2013.
[15] Bunch claims continuing illness and injury as a result of both assaults. He suffers from swelling and ongoing headaches, rashes, dizzy spells and migraine headaches. Bunch is anxious and depressed.
[16] Bunch applied for benefits under the Act.
The Decision of the Board
[17] The Board held a hearing on November 29, 2012. Bunch testified on his own behalf. The Board also heard from police witnesses.
[18] The Board provided the parties with a brief decision following the hearing on November 29, 2012. The Board dismissed the application. More detailed reasons were released on February 6, 2013. Bunch disagreed with the outcome following the hearing and brought this appeal.
[19] In its reasons, the Board accepted that Bunch was a victim of a crime of violence for purposes of section 5(a) of the Act with respect to both assaults.
[20] The Board accepted that Bunch suffered injury both physical and emotional but found that some of these issues stemmed from earlier experiences and that pre-existing conditions exacerbated his present injuries.
[21] In applying s. 17(1) of the Act, the Board considered the following to be "relevant circumstances: the reliability and credibility with respect to his evidence and his behaviour that contributed to his injuries to the extent that his claim for compensation was adversely affected. The Board denied compensation on that basis. The Board went on to identify some of the credibility issues and the behaviour issues. The Board noted that Bunch had not been forthcoming with information about his criminal record but the Board had received evidence from the police that he had an extensive criminal history spanning over 30 years and including approximately 62 convictions. The Board observed that his criminal record did not disentitle Bunch to compensation under the Act but in that case, by engaging in criminally high risk activities, as well as in an ongoing dispute with the offender, Bunch had assumed a significant element of risk by putting himself in harm's way and that the injury was a foreseeable consequence.
The Positions of the Parties
[22] Bunch disagrees with the Board's interpretation of section 17(1).
[23] Bunch argues that it is not fair that his criminal record should be considered relevant to his claim. He notes that he has "served his time" and that this is a second punishment for the same misconduct on his part.
[24] The Board takes the position that Bunch's criminal record was appropriately considered as a factor for purposes of section 17(1) of the Act.
[25] The Board suggests that its decision is reasonable.
The Issues
[26] There are two issues to decide. What is the standard of review and does the decision survive a review on the appropriate standard?
Standard of Review
[27] On the first point, the Board is an expert tribunal applying its home statute. The Board should be entitled to some degree of deference. We accept the Board's submission that the standard of review is reasonableness.
Was the Decision reasonable?
[28] On the second point and as indicated earlier, the issue is whether in its consideration of Section 17(1) of the Act, the Board's finding with respect to the impact of Bunch's criminal record was not reasonable.
[29] Section 17(1) of the Act is as follows:
In determining whether to make an order for compensation and the amount thereof, the Board shall have regard to all relevant circumstances, including any behaviour of the victim that may have directly or indirectly contributed to his or her injury or death.
[30] Section 17 of the Act obliges the Board to consider all relevant circumstances which may include behaviour that contributed to injury or death. The category of "relevant circumstances" must on this language, be broader than just contributory behaviour.
[31] In Sweet v. Ontario (Attorney General), 2011 ONSC 2650 and Sheehan v. Ontario (Criminal Injuries Compensation Board) 1975 Carswell Ont 552 (C.A), this court and the court of appeal determined that it was permissible for the Board to consider an applicant's criminal record in an application for compensation under the Act.
[32] In the present case, the Board considered a number of factors which included credibility, reliability and whether Bunch had acted to put himself in harm's way. Indeed, as indicated above, the Board denied his claim for compensation based on the issues of credibility and reliability and his behaviour and only then went on to consider his criminal record. The Board explained its decision to consider the criminal record – that being Bunch had a lengthy criminal record and had cost taxpayers a significant amount of public funds as a direct result of his criminal activity. The Board observed that Bunch's ongoing relationship with his assailant would permit the assumption that these assaults were to some extent foreseeable. The Board concluded that under the circumstances and in consideration of all of the evidence, a financial award was inappropriate and inconsistent with the spirit of the Act.
[33] In our view, the criminal record was but one factor amongst others considered by the Board. There was a rational connection between the consideration of the criminal record and the decision to withhold benefits.
Outcome
[34] The standard of review of the Board's decision is one of reasonableness. The decision of the Board to deny compensation to Bunch falls within the range of reasonable outcomes.
[35] The appeal is dismissed.
[36] No costs were sought.
Whitaker J.
Kiteley J.
Rady J.
Released: