CITATION: Niras v. Criminal Injuries Compensation Board, 2019 ONSC 2558

DIVISIONAL COURT FILE NO.: DC-18-386-00

DATE: 20190425

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Kiteley, Parayeski and Favreau JJ.

B E T W E E N :

GEORGE NIRAS

Appellant

– and –

CRIMINAL INJURIES COMPENSATION BOARD

Respondent

George Niras representing himself

Sabrina Fiacco for the respondent

HEARD at Toronto: March 25, 2019

FAVREAU J.:

Overview

1George Niras appeals from interim and final orders of the Criminal Injuries Compensation Board. The interim order released on March 27, 2018, granted Mr. Niras’s request that the Board issue a summons to one police officer he sought to call as a witness at his hearing, but denied his request to call three other officers. The final order released on May 9, 2018, denied Mr. Niras’s request for compensation in relation to an alleged assault and to a claim that Mr. Niras has been the target of a criminal conspiracy. The Board also dismissed Mr. Niras’s request for a reconsideration based on new evidence.

2Mr. Niras appeals the Board’s orders on the basis that the Board’s interim decision precluding him from calling the three police officers was a denial of procedural fairness. He argues that he was prevented from presenting his case at the hearing of his application, thereby affecting the outcome of the final decision. He also argues that the Board disregarded new evidence presented at the reconsideration hearing that supports his claim that he was assaulted.

Preliminary issue regarding the request for a publication ban

3At the beginning of the hearing Mr. Niras requested a publication ban. He had not included such a request in his materials nor did he provide any evidence in support of this request. Rather, he relied on his assertion that he has been the target of a criminal conspiracy and that publicity over his case may endanger him.

4Counsel for the Board indicated that her client does not take a position on the issue of a publication ban. She also indicated that the Board generally makes its decisions publicly available, but that decisions typically do not include any identifying information.

5Despite the fact that the Board does not oppose Mr. Niras’s request for a publication ban, this Court must nevertheless consider whether this is an appropriate case for a publication ban.

6The Supreme Court of Canada has consistently emphasized the importance of freedom of the press and open courts in Canada: see, for example, Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, at para. 70, and R. v. Mentuck, 2001 SCC 76, at para. 39.

7In Mentuck, at para. 32, the Court articulated the following test for deciding whether a publication ban is appropriate:

A publication ban should only be ordered when:

(a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and

(b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.

8In Mentuck, at paras. 38-39, the Supreme Court also stated that there must be a “convincing evidentiary basis” to support a request for a publication ban.

9In this case, Mr. Niras has not put forward any evidence in support of his request for a publication ban. In addition, as reviewed below, in considering Mr. Niras’s request for compensation, the Board did not find that there was strong, cogent or convincing evidence that Mr. Niras was the subject of a criminal conspiracy.

10Accordingly, in my view, the evidentiary basis for a publication ban is insufficient in this case, and Mr. Niras’s request is therefore denied.

Mandate of the Criminal Injuries Compensation Board

11The Compensation for Victims of Crime Act, R.S.O. 1990, c. C.24, gives the Board jurisdiction to determine whether a person is eligible to receive compensation.

12Section 5 of the Act gives the Board discretion to make an order for the payment of compensation where a person establishes that he or she has been injured as a result of a crime:

5. Where any person is injured or killed by any act or omission in Ontario of any other person occurring in or resulting from,

(a) the commission of a crime of violence constituting an offence against the Criminal Code (Canada), including poisoning, arson, criminal negligence and an offence under section 86 of that Act but not including an offence involving the use or operation of a motor vehicle other than assault by means of a motor vehicle;

the Board, on application therefor, may make an order that it, in its discretion exercised in accordance with this Act, considers proper for the payment of compensation to,

(d) the victim…

13Therefore, in order to make a successful application for compensation to the Board, a claimant must establish that he or she has suffered an injury that was caused by the commission of a crime.

Proceedings before the Criminal Injuries Compensation Board

Mr. Niras’s application for compensation

14On September 2, 2016, Mr. Niras applied to the Board for compensation for injuries he claimed to have sustained as a victim of crime.

15Originally, Mr. Niras’s application focused on a claim that he was the target of a conspiracy by an organized crime group to murder him. He claims that he received a call from someone in 2015 advising him that someone had been hired to kill him. Following that call, he claims that he had been watched and followed on many occasions, including close to his house, at airports and at various places in the world.

16In 2017, Mr. Niras amended his application to add a claim that he was assaulted when he attended a night club in April 2013. As a result of the assault, he suffered injuries to his ankle that required multiple surgeries. He claims that he initially had no recollection about the cause of the injuries, but he received information in 2016 from an unidentified person advising him that someone at the night club had hit him with a golf club.

Interim decision of the Board

17Prior to the hearing on the merits of his application, Mr. Niras requested that the Board issue a summons to four police officers, three of whom were with the Caledon OPP and one of whom was with the RCMP. The Board held a pre-hearing conference to deal with this issue on February 2, 2018, after which it released an interim decision on March 27, 2018.

18In its decision, the Board noted that it had already issued a summons to a police officer who had investigated Mr. Niras’s complaint of suspicious activity in relation to his claim that he was the target of a conspiracy.

19With respect to the four officers Mr. Niras sought to summons, the Board granted the request to summons one of the officers but found that the evidence of the three other officers was not necessary:

As stated orally at the prehearing conference, if all four witnesses have the same information to provide, only one is needed to testify at the hearing. Accordingly, the Panel grants the summons for Detective Nicole Hanks (OPP) who is in the OPP Major Crimes Division and investigated the Applicant's complaint. The Panel is satisfied that her evidence could be relevant and necessary. The panel is denying the summons requested for Joe Brisboise (OPP), Nick Croll (OPP) and Malcolm Callaghan (RCMP) as the Applicant has not established that their evidence is required for the Board to make a determination on this claim.

20In its interim decision, the Board also granted leave to Mr. Niras to amend his application to add his request for compensation in relation to the assault he claims occurred in April 2013.

Final decision

21The Board held a hearing into both of Mr. Niras’s claims for compensation on May 9, 2018.

22In a decision released June 8, 2018, the Board dismissed Mr. Niras’s request for compensation.

23In its decision, the Board reviewed some of the documents it received, including medical evidence, and it also provided a summary of the evidence given by the two police officers and by Mr. Niras.

24With respect to Mr. Niras’s claim that he had been assaulted in 2013 the Board accepted that Mr. Niras had been injured in April 2013. However, the Board noted that Mr. Niras had originally reported that the injury was caused by a fall, and that he now claimed that he had no recollection of how he was injured. Rather, Mr. Niras relied on a chance meeting at a coffee shop with an unidentified person who, he claimed, advised him that someone had hit his ankle with a golf club. Ultimately, the Board found as follows:

In essence, the Board is left with the fundamental question as to whether a crime of violence occurred. In support of that claim, the applicant relies on a statement said to have originated from an unnamed third party about two years after the event, that the injury was the result of a crime of violence and not the result of a fall or some other cause unknown to the applicant…

Considering all of the evidence before the Board, unfortunately, clear, convincing and cogent evidence as to the cause of the fracture to the applicant's lower leg is lacking and we do not find, on a balance of probabilities that the injury was caused by a crime of violence.

25With respect to Mr. Niras’s claim that he was the target of a conspiracy to murder him, again the Board dismissed this claim on the basis that there was not clear and convincing evidence in support of the claim. The Board accepted that Mr. Niras believed he was being followed, but found that the objective evidence was not clear. In reaching this conclusion, the Board considered that Mr. Niras based his belief on a call he received from an unidentified person in late 2015 who told him that a meeting was about to take place for the purpose of planning his murder. The Board also considered the evidence of police officers who investigated Mr. Niras’s concerns about cars parked in front of his house, and who found nothing suspicious about the owners of the cars after making relevant inquiries. Ultimately, the Board concluded as follows:

Further, on the applicant’s evidence, it would appear that organized criminal activity utilized extensive resources to watch him and follow him, not only near his home, but on the subway, at the hospital and at international airports. While the applicant’s fear appears honestly held, and he may believe rightly or wrongly, that some of his prior acquaintances are connected to or are members of organized crime, we are not satisfied on a balance of probabilities that there is clear, cogent and convincing evidence that he is the target of a criminal conspiracy to murder him or that he has been criminally harassed in furtherance of that objective or for any other reason.

Reconsideration decision

26Mr. Niras requested that the Board reconsider its decision dismissing his application for compensation. Mr. Niras claimed that he had new evidence in support of his application.

27Based on this request, the Board ordered a reconsideration hearing which was conducted in writing.

28In a decision released on October 5, 2018, after considering the additional evidence filed by Mr. Niras, the Board denied the request.

29The new evidence Mr. Niras sought to rely on was a report titled “General Occurrence Hardcopy” prepared by the York Regional Police that related to the alleged assault.

30In its reconsideration decision, the Board found that, assuming this evidence had been available at the time of the original hearing, the outcome would not be different. In particular, the Board held that, while the General Occurrence report contained some new details about the police investigation into the alleged assault, “it does not advance the Applicant’s claim that he was assaulted and therefore compensable”. In particular, the Board reviewed information about the police’s interviews with potential witnesses’ to the assault identified by Mr. Niras, and the fact that none of these witnesses provided evidence that supported Mr. Niras’s claim.

31In the context of the reconsideration, Mr. Niras also challenged the Board’s interim decision limiting the summonses to be issued to police officers. The Board dismissed the request for reconsideration on this basis, making the following finding:

The CICB is conscious of the need to exercise its summons authority only where oral evidence is necessary for the determination of the issues. The pretrial ruling, which was based on the original application, determined that the police officer’s oral evidence would not have assisted the Applicant. The basis for that ruling is confirmed by the content of her Supplemental Report which was provided by the Applicant for the Reconsideration and outlined above.

Jurisdiction

32Section 23 of the Compensation for Victims of Crime Act provides that “a decision of the Board is final except that an appeal lies to the Divisional Court from any decision of the Board on any question of law”.

33Accordingly, the Court is only entitled to intervene on a question of law. The Court has no jurisdiction to interfere with findings of fact or findings of mixed fact and law.

Standard of review

34Given that the Board was interpreting and applying its home statute, as previously held by this Court on a number of occasions, the standard of review is reasonableness: see, for example, Desmoulin v. Criminal Injuries Compensation Board, 2015 ONSC 3696 (Div. Ct.), at para. 10; Yacoub v. Criminal Injuries Compensation Board, 2015 ONSC 1878 (Div. Ct.), at para. 2; and Dekany v. Criminal Injuries Compensation Board, 2013 ONSC 6794 (Div. Ct.), at para. 14.

35On questions of procedural fairness, the court is not to engage in a standard of review analysis. Rather, the issue for the Court to decide is whether the decision maker afforded the requisite procedural fairness in the specific circumstances of the case: London (City) v. Ayerswood Development Corp., [2002] O.J. No. 4859 (C.A.), at para. 10.

Issues and analysis

36During the argument of the appeal, Mr. Niras focused his appeal on the two following issues:

a. Whether the Board made an error by refusing to issue summonses to the three additional police officers Mr. Niras sought to call as witnesses; and

b. Whether the Board erred in its finding that the General Occurrence report did not support Mr. Niras’s claim.

Whether the Board erred in not issuing summonses to the other officers

37Mr. Niras claims that he was not permitted to present his case because the Board refused to issue summonses to three of the officers he wished to call.

38Both the Statutory Powers and Procedures Act, R.S.O. 1990, c. S.22, and the Board’s Rules of Procedure make clear that the Board is to play a gatekeeping function in determining who may be summoned as a witness at a hearing.

39Section 12 of the Statutory Powers and Procedures Act gives tribunals the power to issue a summons to a witness to provide “relevant” evidence:

12. (1) A tribunal may require any person, including a party, by summons,

(a) to give evidence on oath or affirmation at an oral or electronic hearing; and

(b) to produce in evidence at an oral or electronic hearing documents and things specified by the tribunal,

relevant to the subject-matter of the proceeding and admissible at a hearing.

40Rule 11 of the of the Board’s Rules of Procedure also provides that the Board will not issue a summons unless the proposed witness has relevant and necessary evidence:

Rule 11: Summons

A party may ask the CICB to issue a summons to a witness by filing a Request for Summons as soon as possible after receiving the Notice of Hearing and, in any event, at least 7 days before the hearing.

The CICB will not issue a summons unless satisfied the witness has information arguably relevant to the issues in dispute and is necessary to deciding the application.

41Here, in its interim ruling, the Board determined that Mr. Niras did not establish that three of the police witnesses he sought to summons were necessary. The Board addressed this issue on the reconsideration, and found that Mr. Niras had not established that the officers had any evidence that would change the outcome.

42Mr. Niras relies on the decision of the Court of Appeal for Ontario in Liquor Control Board of Ontario v. Lifford Wine Agencies Limited, [2005] O.J. No. 3042 (C.A.) to suggest that the Board has an obligation to summons all the witnesses he wished to call, and that the failure to do so constitutes a breach of natural justice.

43I do not agree that the decision stands for this broad proposition. In Liquor Control Board of Ontario v. Lifford Wine Agencies Limited, at paras. 33-34, the Court of Appeal reviewed the circumstances in which an administrative tribunal’s decision not to issue a summons to a witness may amount to a breach of procedural fairness:

33 There is little doubt that administrative tribunals are particularly well-positioned to assess the relevancy of evidence sought to be introduced before them. This was emphasized by the Supreme Court of Canada in Université du Québec à Trois-Rivières v. Larocque, [1993] 1 S.C.R. 471, in which Lamer C.J., writing for the majority of the Court, stated at para. 46:

For my part, I am not prepared to say that the rejection of relevant evidence is automatically a breach of natural justice. A grievance arbitrator is in a privileged position to assess the relevance of evidence presented to him and I do not think that it is desirable for the courts, in the guise of protecting the rights of parties to be heard, to substitute their own assessment of the evidence for that of the grievance arbitrator.

34 Importantly, however, Lamer C.J. went on to say, “It may happen, however, that the rejection of relevant evidence has such an impact on the fairness of the proceeding, leading unavoidably to the conclusion that there has been a breach of natural justice” (at para. 46).

44In that case, the Divisional Court had found that the Alcohol and Gaming Commission of Ontario’s decision not to issue summonses to witnesses on an issue of witness tampering breached the applicant’s right to procedural fairness. The Court of Appeal upheld the Divisional Court’s decision. In the process of doing so, the Court went through a careful analysis of the impact of the failure to issue the summonses on the fairness of the proceedings in the particular circumstances of that case.

45There is no procedural unfairness simply because the Board refused to issue the summonses requested by Mr. Niras. Rather, the issue is whether this refusal had such an impact on the evidence available at the hearing that it breached Mr. Niras’s right to a fair hearing.

46In his submissions, Mr. Niras did not point to any evidence he anticipated the three police officers he wished to summons could provide that is relevant or significant to his case, or that is different from evidence that had already been presented. In its interim decision, the Board considered than none of these police witnesses had direct evidence or evidence different from the evidence of the police witnesses who were to testify. Notably, these are police officers with whom Mr. Niras may have spoken about his concerns about being the target of a criminal conspiracy, but there is nothing in the record that suggests that they have evidence about the investigation into those concerns that is different from the evidence of the other officers.

47I see no error in this determination and no basis for finding that Mr. Niras’s natural justice rights were breached.

48During the argument of the appeal, Mr. Niras purported to rely on a newspaper article about police officers who falsified their notes. Again, this does not assist Mr. Niras in establishing that the officers he wishes to summons have relevant evidence that would assist him in establishing his case. There is no evidence that the officers he wished to summons were involved in falsifying their notes and, again, no evidence that these officers uncovered information that would assist Mr. Niras in making out his claim.

49Accordingly, I see no error in the Board’s refusal to issue summonses to the additional three police officers.

Whether the Board erred in its assessment of the General Occurrence report

50During the hearing, Mr. Niras argued that there is evidence in support of his claim that he was assaulted in 2013 in the General Occurrence report he provided to the Board for the reconsideration hearing. In particular, he points to the use of the word “founded” in one line of the report to suggest that the police in fact do have evidence that supports his contention that he was the victim of crime. He argued that the officer who conducted that investigation should have been called as a witness.

51In my view, there is no merit to this argument.

52The General Occurrence report was prepared by the York Regional Police, and it deals with the investigation into Mr. Niras’s claim that the injuries he sustained at the night club in 2013 were caused by an assault. The investigation appears to have been commenced in October of 2016, soon after Mr. Niras first reported the alleged assault to the police. The report includes a line that states “CCJS Status: FOUNDED NOT CLEARED”, which is the line Mr. Niras relies on. The report also makes reference to a few potential witnesses.

53In its reconsideration decision, the Board considered the information in the General Occurrence report. In particular, the Board reviewed a portion of the report that summarizes the information obtained by the police from the potential witnesses identified by Mr. Niras. On the basis of that summary, the Board found that there is no additional evidence that would lead to a different outcome because none of the evidence supported Mr. Niras’s claim that he had been assaulted.

54In my view, these are findings of facts over which this Court does not have jurisdiction.

55In any event, these findings support the Board’s conclusion that summonsing the officer in question would not have changed the outcome of the hearing into whether Mr. Niras had been the victim of a crime.

56Accordingly, I see no merit to this argument.

Conclusion

57In conclusion, for the reasons outlined above, the appeal is dismissed.

58At the conclusion of the hearing, counsel for the Board advised that the Board did not seek costs in the event the appeal was dismissed. Accordingly, there will be no costs of the appeal.

FAVREAU J.

I agree _______________________________

KITELEY J.

I agree _______________________________