Yacoub v. Criminal Injuries Compensation Board, 2015 ONSC 1878

1This is an appeal from a decision of the Criminal Injuries Compensation Board (the “Board”) under which it awarded the appellant a total of $3,000 by way of compensation for two incidents where it found that the appellant was a victim of a crime of violence. The Board denied the rest of the appellant’s claims.

2An appeal lies to this Court from a decision of the Board on a question of law. With respect to the applicable standard of review, the Board was interpreting and applying its home statute and thus we accept that the standard of review that applies to this appeal is reasonableness.

3The appellant raises what she alleges are three questions of law:

(i) The Board erred in failing to compensate her in respect of other incidents where she alleges she was the victim of crimes of violence. As part of this submission, the appellant argues that the Board ignored evidence that she had called the police repeatedly about other incidents. According to the appellant, taken together, the incidents that she was subjected to that occurred over a period of years constituted a continuing pattern of harassment that undermined her health and forced her to move to more expensive and non-subsidized accommodation.

(ii) The second error of law alleged by the appellant is that the Board erred in only awarding her $3,000 for past, present and future pain and suffering. According to the appellant, this amount does not begin to compensate her for what she describes as the nine years of suffering that she endured.

(iii) The third error alleged by the appellant is directed at the Board’s failure to compensate her for the difference in rent between what she is now paying and what she was paying when she was living in subsidized housing. This error flows directly from the appellant’s contention that she was forced to move from her subsidized housing unit because of the harassment that she suffered.

4Before addressing the appellant’s arguments, it is important to take note of what happened before the Board as this speaks to the record that was before it. This was a case where the Board decided to hold a hearing. The Board hearing was originally scheduled for October 11, 2013. The appellant and the police witness failed to attend on this date. The hearing was adjourned and a new hearing was scheduled for January 6, 2014. A Notice of Oral Hearing with respect to the new date was provided to the appellant on November 28, 2013. The appellant failed to attend the January 6, 2014 hearing. The Board decided to proceed in her absence, something that they have jurisdiction to do under s. 7 of the SPPA. In doing so, they looked at the evidence that the appellant had provided and heard from a police witness. It was only after the hearing was completed that the Board received a note from the appellant that the appellant had mailed fifteen minutes before the hearing started (the note was mailed at 1:15 p.m. - the hearing was scheduled to start at 1:30 p.m.).

5In that note that appellant explained that she was unable to attend the hearing due to a snow storm. That note ended with the sentence, “I don’t have any more information or comment to put forward”. The Board issued its decision in March 2014, which was after it had received the appellant’s note.

6We begin by finding that there was no procedural unfairness that would justify this Court’s intervention because the Board proceeded in the absence of the appellant on January 6, 2014 and did not reopen the hearing once it received the appellant’s note. First, the decision to proceed in this way was a discretionary one founded in the Board’s ability to control its own process. As such, we owe the decision considerable deference. Second, this was not the first time that the appellant had failed to appear. Third, the appellant took no steps on the day of the hearing to telephone the Board and let it know that she would not be attending or why. In this regard, we pause to note that the appellant had instructed the Board not to contact her by telephone. Fourth, the letter that the Board received after the hearing did not request an adjournment or the opportunity to make further submissions. In fact, it implied the opposite by stating that the appellant had no further information or comment to put forward.

7Before us, the appellant has filed new evidence, particularly medical evidence that she alleges corroborates her ongoing pain and suffering and her allegations of other crimes. The respondent did not object to us looking at this evidence, but reminded us that our jurisdiction is not to retry the case based on additional facts but to determine whether the Board made an error in law. In this regard, the respondent pointed out to us that s. 25 of the Compensation for Victims of Crime Act, R.S.O 1990, c. C.24 gives the Board broad discretion to vary a decision based on any new evidence that has become available or any other matter that the Board considers relevant. The respondent argues that this was the appropriate route for the appellant to pursue if she wished to reargue her case on the basis of evidence that was not before the Board in January 2014.

8We agree, as the focus of the appellant’s complaints about the Board’s decision concern factual findings, not questions of law. Given our jurisdiction, those concerns must be pursued before the Board, especially where the statute provides a remedy for reopening a case.

9Given this finding, we will deal only briefly with the appellant’s submissions that the Board erred in law.

10With respect to the appellant’s first submission that the Board erred in failing to find that she was the victim of more crimes of violence, the Board’s finding that there was insufficient corroborating evidence of any further incidents of violence was a reasonable one, given the record before it.

11Given its finding on the first issue and the lack of medical evidence before it, there can be no suggestion that the Board erred in principle in fixing the amount of compensation for the appellant’s pain and suffering at $3,000.

12With respect to the third alleged error of law, the incidents that the Board was satisfied had occurred, occurred some three years before the appellant moved from her subsidized housing unit. Given this this gap in time, it was not unreasonable for the Board to conclude that it was not the incidents of violence in February of 2005 that caused the appellant’s move in 2008.

13For these reasons the appeal is dismissed.

COSTS

14I have endorsed the back of the Record, “For reasons given orally by Sachs J. this appeal is dismissed. As the Board did not seek costs, there shall be no order as to costs.”

___________________________ SACHS J.