CITATION: Bongelli v. Criminal Injuries Compensation Board, 2014 ONSC 5332
DIVISIONAL COURT FILE NO.: 349/13
DATE: 20140915
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
NORDHEIMER, HORKINS AND D. BROWN JJ.
BETWEEN:
MARIA BONGELLI
Appellant
– and –
CRIMINAL INJURIES COMPENSATION BOARD and GASPARE DI SALVO
Respondents
Fernando Souza, for the Appellant
David E. Fine, for the Respondent, Criminal Injuries Compensation Board
Dimple Verma, for the Respondent, Gaspare Di Salvo
HEARD at Toronto: September 15, 2014
nordheimer j. (orally)
[1] Mrs. Bongelli appeals from a decision of the Criminal Injuries Compensation Board that awarded her former son-in-law compensation for injuries he sustained at the hands of Mrs. Bongelli. The appellants’ main submission is that the Board denied her procedural fairness by failing to give her notice of the Board hearing where the evidence was presented that led to the Board’s decision.
[2] Over the objections of the respondents, we accepted what the parties characterized as “fresh evidence” from the appellant consisting of an affidavit from one of her daughters and thereafter a very late filed affidavit from Mrs. Bongelli. The purpose of the daughter’s affidavit was to explain that it was she who had completed the forms for her parents, that I will have more to say about in a moment. Mrs. Bongelli’s affidavit served to confirm the contents of the daughter’s affidavit. We also accepted an affidavit from an articling student on behalf of Mr. Di Salvo, filed this morning, that attempted to contradict the contents of those affidavits by referencing some excerpts from Mrs. Bongelli’s examination for discovery in a separate proceeding.
[3] I do not consider any of these affidavits to be properly characterized as fresh evidence. The test in R. v. Palmer therefore has no application. Rather, the affidavits address the issue whether there was a failure to accord the appellants procedural fairness at the original hearing and thus a breach of natural justice occurred. As such, the affidavits are presumptively admissible: 142445 Ontario Ltd. (c.o.b. Utilities Kingston) v. International Brotherhood of Electrical Workers, Local 636, [2009] O.J. No. 2011 (Div. Ct.). The affidavit goes to the central issue in this appeal and is appropriately received as providing the appellant’s explanation for why she did not attend the Board Hearing and thereby provide the framework for her assertion that she was not accorded procedural fairness.
[4] That said this appeal cannot be turned into a credibility contest. Consequently, in determining this matter, we have proceeded taking the evidence of Mrs. Bongelli at its best.
[5] I should also stress that our acceptance of these affidavits is not intended to condone the very late delivery of all of this material.
[6] In terms of the central issue, when the Board receives an application for compensation, the Board sends a Notice of the claim to those persons who, it is alleged, were the “offenders” who caused the injuries. Those individuals are then entitled to file responding material and to attend the hearing of the matter if they wish to do so.
[7] It is of importance to note that the Notice that the Board sends out clearly advises the recipient that they are entitled to attend any hearing that is to be held and it explains that, at the hearing, evidence and argument will be presented. The Notice goes on to ask the recipient whether they wish to present evidence at any hearing. There are then two check boxes: one for Yes and one for No. Beside the No check box, there is a warning that reads:
By ticking “No”, you agree that the Board will not notify you of the hearing date, location or time. However, any statements you have written above will be taken into consideration by the adjudicator(s) when rendering a decision in this matter.
[8] Both the appellant and her husband returned these Notices with the No box checked off. Notwithstanding that, the appellant now complains that she did not receive notice of the hearing and that, consequently, the Board deprived her of procedural fairness.
[9] It is important, in my view, in determining this matter to clearly understand the core complaint of the appellant. It is that she was denied procedural fairness, not because she had always intended to appear at the hearing and misunderstood that she would not be given notice of it. Rather, the asserted procedural fairness is that the Board failed to explain to her what the consequences might be of the outcome of the hearing on an outstanding civil action that her son-in-law commenced against her and her husband as a result of this same matter. In other words, the appellant does not complain that the Board decided to give her former son-in-law some compensation but instead complains that she did not know that, if the Board came to that decision, it might have some adverse impact on the appellant’s position in a companion civil proceeding.
[10] In my view, the appellant has failed to establish any procedural unfairness in the manner in which the Board proceeded. There was no obligation on the Board to explain what impact, if any, the proceedings of the Board might have on other matters that might be outstanding involving any of the parties before the Board. It is neither the duty of the Board, nor would it be appropriate for the Board, to provide legal advice to the appellant regarding other potential proceedings. The appellant had lawyers acting for her with respect to the civil action and it is to those lawyers that the appellant should have turned for any advice and direction in this matter. Whether she did or did not seek that advice, that is a choice that she made and she must bear the consequences of that choice.
[11] The Notice sent by the Board is very clear in terms of the consequences of checking the No box. There is no suggestion in the material before this court that the appellant misunderstood those consequences, that is, that the hearing would proceed in her absence. Rather, her complaint is entirely related to potential ramifications of the Board proceeding on the outstanding civil claim.
[12] There is no issue that, at law, the appellant had the right to be given notice of the hearing and to attend the hearing if she had wanted to do so. But at the same time, in the interests of promoting an expedient process, the Board is entitled to adopt a procedure whereby potential parties can waive that right. That is undoubtedly one purpose of the Notice. The Notice also clearly explains the consequence of making that choice.
[13] The appellant’s position is, in essence, that the Board was required to give her notice of the hearing notwithstanding that the appellant had clearly indicated that she did not want notice of the hearing, all because of unspecified potential impacts on some other separate proceeding. I find that position to be untenable.
[14] As a consequence, I can see no merit to the assertion that the Board denied the appellant procedural fairness in proceeding as it did.
[15] I also see no merit in the submission that the Board erred in concluding that the events leading to Mr. Di Salvo’s injuries did not arise from a crime of violence. On the evidence that was before it, it was open to the Board to conclude that the actions of Mrs. Bongelli constituted an assault that caused serious injuries to Mr. Di Salvo.
[16] In light of my conclusion, I do not consider it necessary to address the issue whether this matter was properly raised by way of an appeal from the Board as opposed to by way of an application for judicial review.
[17] The appeal is dismissed.
COSTS
[18] On behalf of the panel, I have endorsed the back of the Appeal Book, “This appeal is dismissed for oral reasons given by Nordheimer J. We do not view this case as an appropriate one to award costs to the Board. We would award costs to Mr. Di Salvo that we fix at $2,500 inclusive of disbursements and HST.”
NORDHEIMER J.
HORKINS J.
D. BROWN J.
Date of Reasons for Judgment: September 15, 2014
Date of Release: September 17, 2014
CITATION: Bongelli v. Criminal Injuries Compensation Board, 2014 ONSC 5332
DIVISIONAL COURT FILE NO.: 349/13
DATE: 20140915
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
NORDHEIMER, HORKINS AND D. BROWN JJ.
BETWEEN:
MARIA BONGELLI
Appellant
– and –
CRIMINAL INJURIES COMPENSATION BOARD and GASPARE DI SALVO
Respondents
ORAL REASONS FOR JUDGMENT
NORDHEIMER J.
Date of Reasons for Judgment: September 15, 2014
Date of Release: September 17, 2014