CITATION: J.I.R.L. v. Criminal Injuries Compensation Board, 2016 ONSC 4305
DIVISIONAL COURT FILE NO: DC-645-15
DATE: 20160727
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
GORDON R.S.J., THEN AND FREGEAU JJ.
BETWEEN:
J. I. R. L
Appellant
– and –
CRIMINAL INJURIES COMPENSATION BOARD
Respondent
Unrepresented.
Brian A. Blumenthal, counsel for the Respondent.
HEARD: June 3, 2016
Overview
[1] The Appellant, J.I.R.L., appeals the review decisions of the Respondent, the Criminal Injuries Compensation Board (the “Board”) issued on November 10, 2014 and January 9, 2015 which together had the effect of limiting his loss of income claim to $8,629.50. It is his position that the Board ought to have ordered periodic payments to him of $1,000 per month on account of loss of income, to continue until he has been paid $365,000.
Background
[2] J.I.R.L. was threatened and assaulted in 1998 resulting in certain injuries and ongoing psychological trauma. He has since suffered from anxiety, depression, Post Traumatic Stress Disorder and Psychosis. He has had ongoing care from psychiatrists and has often been unable to work.
[3] The Board is an administrative tribunal with broad discretion under the Compensation for Victims of Crime Act, R.S.O. 1990, c.24 (the “Act”) to hear applications by victims of crime for, among other things, the payment of money as compensation for pain and suffering, medical care and loss of income.
[4] J.I.R.L. applied to the Board for the payment of compensation as a result of the crimes against him. The Board has released four decisions pertaining to his claims.
[5] On August 20, 2013 the Board awarded him $15,000 for pain and suffering and $45.00 for medical expenses incurred.
[6] On April 24, 2014, the Board awarded J.I.R.L. $2,400 for future therapy costs and $475 for medical expenses incurred. It denied his request for lost income because he had not provided adequate documentation.
[7] On November 10, 2014 the Board made a variation order by which it awarded J.I.R.L. $7,079.50 for wage loss. As a result of this payment J.I.R.L. effectively achieved the maximum lump sum award of $25,000 allowed under the Act.
[8] On January 9, 2015, the Board converted part of the April 24, 2014 award for future therapy costs to a loss of income award but rejected J.I.R.L.’s request for periodic income loss payments of $1,000 per month.
[9] J.I.R.L. articulated three issues on appeal: First, that the Board erred in law by failing to consider section 25(1) of the Act when, on January 9, 2015, it refused to order periodic payments on account of loss of income. Secondly, that the Board failed to articulate clear and specific reasons for the denial of periodic payments. Thirdly, that the Board erred in law by violating the duty of fairness owed to him when it conducted its hearings of November 10 and January 9 based solely on written submissions. Lastly, that the Board discriminated against him by failing to recognize his mental illness as a disability thereby violating his human rights.
Jurisdiction
[10] Section 23 of the Act provides that an appeal from a decision of the Board lies to the Divisional Court on a question of law. As discussed below, we are content that at least part of J.I.R.L.’s appeal is properly before us. However, with respect to his argument that his human rights were violated by virtue of the Board decisions, we note that it is incumbent upon him to have that issue adjudicated before the Human Rights Tribunal before there can be judicial review by this court.
Standard of Review
[11] The Board has broad discretion under the Act to award compensation to qualified applicants. In making its decisions it interprets and applies its home statute. This court has recently held that the appropriate standard of review for decisions of the Board is reasonableness [see Desmoulin v. Criminal Injuries Compensation Board, 2015 ONSC 3696, Yacoub v. Criminal Injuries Compensation Board, 2015 ONSC 1878, Bunch v. Criminal Injuries Compensation Board, 2014 ONSC 381 and Dekany v. Criminal Injuries Compensation Board, 2013 ONSC 6794].
[12] We agree.
Analysis
[13] The pertinent sections of the Act are as follows:
S. 7(1) Compensation may be awarded for,
(a) expenses actually and reasonably incurred or to be incurred as a result of the victim’s injury or death;
(b) pecuniary loss incurred by the victim as a result of total or partial disability affecting the victim’s capacity for work;
(c) pecuniary loss incurred by dependants as a result of the victim’s death;
(d) pain and suffering;
(e) support of a child born as a result of rape;
(f) other pecuniary loss resulting from the victim’s injury and any expense that, in the opinion of the Board, it is reasonable to incur.
S. 18. The Board may order compensation to be paid in a lump sum or in periodic payments, or both, as the Board thinks fit.
S. 19(1) The amount awarded by the Board to be paid in respect of the injury or death of one victim shall not exceed,
(a) in the case of lump sum payments, $25,000; and
(b) in the case of periodic payments, $1,000 per month, and where both lump sum and periodic payments are awarded, the lump sum shall not exceed half of the maximum therefore prescribed in clause (a).
S. 25(1) The Board may at any time on its own initiative or on the application of the victim, any dependant of the victim, the Minister or the offender, vary an order for payment of compensation in such manner as the Board thinks fit, whether as to terms of the order or by increasing or decreasing the amount ordered to be paid, or otherwise.
Issue #1 - Failure to Consider Section 25(1)
[14] When reviewed together, the decisions of the Board dated November 10, 2014 and January 9, 2015 indicate three basic reasons for limiting J.I.R.L.’s claim for loss of income to $8,629.50.
[15] The first reason is that J.I.R.L. established a complete lack of income or benefits for a period of only eight months following the crime and the Board determined that he would be compensated to the extent of $1,000 per month only for those eight months (in the end, J.I.R.L. was paid $629.50 more than the entitlement the Board had determined). For all other months, because J.I.R.L. was earning income or receiving Employment Insurance benefits, Workplace Safety Insurance benefits, Ontario Works benefits or Ontario Disability Support Benefits and the Board determined that J.I.R.L. would not be compensated.
[16] In our view, the Board erred in law by limiting J.I.R.L.’s benefits on this basis. Section 17(3) of the Act provides that in assessing compensation, the Board shall take into consideration any benefit, compensation or indemnity paid or payable to the applicant from any source other than social assistance. The limitation of J.I.R.L.’s claim based upon his having received Ontario Works and Ontario Disability Support Benefits, both of which would constitute “social assistance” benefits, is not a reasonable interpretation of the Act given the wording of this section.
[17] The second and third reasons the Board declined to make a further award in J.I.R.L.’s favour are somewhat interrelated. The Board determined that he was ineligible for a further lump sum payment because he had already received the maximum allowable lump sum of $25,000. The Board also determined that he was ineligible for periodic payments because he had already received more than $12,500 in lump sum compensation. This was based upon section 19 of the Act which provides that if both lump sum and periodic payments are awarded, the lump sum cannot exceed one half of the maximum allowable. The Board interpreted this to mean that if lump sum payments have been made which exceed one half of the maximum, the applicant cannot then qualify for periodic payments.
[18] In our view, Section 25(1) affords the Board sufficient discretionary power to vary earlier orders for compensation so as to allow an applicant to be eligible for periodic payments. In particular, this section specifically allows the Board to increase or decrease the amount(s) previously ordered to be paid and would give the Board discretion to decrease its earlier lump sum awards as required to effect compliance with section 19 and allow for periodic payments should J.I.R.L. be otherwise eligible. The Board’s failure to consider its wide discretionary powers under section 25(1) amounts to an error of law.
Issue #2 - Insufficient Reasons
[19] In our view the Board’s reasons are adequate and intelligible. They contain sufficient analysis to allow someone reviewing the reasons to understand why and on what basis the decisions were being made.
Issue #3 - The duty of Fairness
[20] The decisions of the Board made on November 10 and January 9 were issued after conducting a documentary proceeding. That is, the hearings were written as opposed to oral.
[21] Section 5.1(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c.S.22 provides that a tribunal whose rules made under section 25.1 deal with written hearing may hold a written hearing in a proceeding.
[22] Rule 7.1 of the Board’s Rules of Procedure provides that hearings at the Board may be conducted in writing provided the Board is satisfied that no party would be materially prejudiced. A party may object to a written hearing and request an oral hearing.
[23] In this case, J.I.R.L. was advised that the hearings would be written. He agreed, provided the Board would convene an oral hearing if it had questions of him. He had full opportunity to put his documentary evidence before the Board and the decisions were made on a fulsome record.
[24] We are unable to find that J.I.R.L. was treated unfairly in the manner in which the hearings were conducted.
Issue #4 - Human Rights Violation
[25] As noted above, we are of the view that J.I.R.L. is obliged to bring any complaints based upon violation of his human rights to the Human Rights Tribunal for adjudication and that we are without jurisdiction to hear them at this time.
Conclusion
[26] We conclude that the Board erred in law by considering J.I.R.L.’s entitlement to social assistance when determining his entitlement to compensation for loss if income. We further conclude that the Board erred in failing to consider its broad discretionary powers under section 25 of the Act when assessing J.I.R.L.’s eligibility for compensation for loss of income.
[27] Accordingly, the appeal is granted and the matter remitted back to the Board for a new hearing.
Mr. Justice R. D. Gordon, R.S.J.
Mr. Justice E. F. Then
Mr. Justice J. S. Fregeau
Released: July 27, 2016
CITATION: J.I.R.L. v. Criminal Injuries Compensation Board, 2016 ONSC 4305
DIVISIONAL COURT FILE NO: DC-645-15
DATE: 20160727
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
GORDON R.S.J., THEN AND FREGEAU JJ.
BETWEEN:
J. I. R. L.
Appellant
– and –
CRIMINAL INJURIES COMPENSATION BOARD
Respondent
REASONS FOR JUDGMENT
Released: July 27, 2016