Court File and Parties

Citation: Reid v. Criminal Injuries Compensation Board, 2015 ONSC 6578 Divisional Court File No.: DC-15-44-00JR Date: 2015-10-23 Superior Court of Justice – Ontario – Divisional Court

Re: Aston Reid, Applicant And: Criminal Injuries Compensation Board, Respondent

Before: Molloy, Hambly and Hackland JJ.

Counsel: Shalom Wise, for the Applicant Brian Blumenthal, for the Respondent

Heard: October 21, 2015 in Brampton

Endorsement

Introduction

[1] Aston Reid seeks judicial review of two rulings of the Criminal Injuries Compensation Board (“the Board”). On August 28, 2014, the Board varied a previous award and granted Mr. Reid a partial wage loss claim up to his retirement date, but denied his claim for lost income after that date. The second decision, dated December 1, 2014, dismissed Mr. Reid’s request for a review of the August 28, 2014 decision. For the reasons that follow, we have concluded that the August 28, 2014 decision cannot stand. Given that result, it is not necessary to deal with Mr. Reid’s grounds for review of the second decision.

Background Facts

[2] Mr. Reid had been a bus driver for the Toronto Transit Commission (“TTC”) for 33 years prior to his retirement in 2012. In this role, he was the victim of a number of assaults by passengers, including an incident on November 29, 2009 when a passenger threatened him with a 12-inch knife after Mr. Reid told him he was required to show identification when using a Metropass to board the bus. The passenger was criminally charged and convicted of the offence of assault with a weapon. This incident was the subject of the within proceedings before the Board and now the judicial review proceeding before this Court.

[3] There is no dispute that Mr. Reid was a victim of crime within the meaning of the Act.

[4] Mr. Reid filed a claim with the Board on September 21, 2012. He sought compensation for travel to treatment, pain and suffering and loss of income. Following a hearing on May 16, 2013, the Board awarded him $6,488 for pain and suffering and expenses relating to treatment.

[5] By the time of that hearing, Mr. Reid had already retired from the TTC, and prior to that had been on disability leave for a period of time. During his 2013 Board hearing, Mr. Reid was advised of the possibility of also making a claim for lost income and he subsequently did make such a claim.

[6] Mr. Reid retired from the TTC on January 6, 2012. He maintains that he was forced to take an early retirement as a result of trauma from a series of assaults over the years of his employment. Following his retirement, he applied to WSIB for benefits pursuant to that organization’s Traumatic Mental Stress policy. The WSIB denied the claim. Mr. Reid objected. The determination was reviewed by an Appeal Resolution Officer, who upheld the determination on September 12, 2013, noting that Mr. Reid did not exhibit acute symptoms after the assault, and took the view that his stress reaction and depression, which developed years later, was related to divorce proceedings with his wife.

[7] Mr. Reid applied to the Board to vary the previous 2013 award by adding compensation for loss of income as a result of the assault. This claim covered two periods of time: November 11, 2011 to January 6, 2012 (when Mr. Reid was receiving disability benefits which were less than his salary); and from January 6, 2012 onwards (after he retired).

[8] In support of his claim, Mr. Reid filed two medical reports from a psychiatrist, Dr. Jerry Cooper dated September 27, 2012 and March 20, 2013. Dr. Cooper was a practicing psychiatrist with 47 years of clinical experience. He diagnosed Mr. Reid as suffering from a “generalized anxiety disorder, chronic pain syndrome, with aspects of post traumatic stress disorder and aspects of a major depressive disorder – reactive depression.” He stated that Mr. Reid was “unable to be gainfully employed in any kind of competitive capacity and the prognosis for vocational rehabilitation is poor.” Dr. Cooper attributed this to the assaults on Mr. Reid while he was a TTC driver. He was categorical in maintaining that this stress reaction was not temporary, but said that he was trying to help Mr. Reid with his life and that his general prognosis could only be said to be “in abeyance.” Dr. Cooper opined that “if the assaults did not occur, Mr. Reid would still be working and would have worked to age 71, but he finally could not cope any longer and stopped working on November 14, 2011” at the age of “only 60 years old.”

The Decision of the Board: August 28, 2014

[9] The Board calculated Mr. Reid’s loss of income from November 14, 2011 to January 6, 2012 at $4,289.96. The Board reached that figure by deducting the sick benefits Mr. Reid received during that period of time from his potential earnings from employment. The Board then referred to its usual practice of awarding wage loss to a maximum of $1,000.00 a month, $250.00 a week and $5.00 a day. Applying that formula, the Board said that the maximum wage loss that could be awarded to Mr. Reid for this period would be $1,900.00. The Board referred to the fact that Mr. Reid had “numerous” other difficulties he was dealing with during this period, including divorce, financial stress, problems with co-workers (fired 13 times), and other incidents with passengers. The Board then stated, “However, the Board finds it reasonable to make an award for wage loss in the amount of $1,900.00 given the incident likely exacerbated all other issues he was coping with.”

[10] With respect to the second period of time, commencing with Mr. Reid’s retirement, the Board dismissed his claim entirely. In coming to that conclusion, the Board relied exclusively on the WSIB report denying Mr. Reid’s claim for any compensation on the basis that his psychological issues were unrelated to the assaults upon him during his employment. Although the Board references medical evidence referred to in the WSIB report, the Board did not actually have those medical reports, but merely quoted from them based on the quotes set out in the WSIB report. The Board’s reasons on this point, in their entirety, are as follows:

As for the request for wage loss from January 6, 2012 until present, the Board denies to make an award based on information garnered from the WSIB report citing medical evidence from Dr. Cohen’s report of March 29, 2010 which states that the Applicant was suffering from “low back pain, other non-work related physical conditions, ‘ugly’ divorce, financial issues and problems with a co-worker.” Furthermore, Dr. Yaroshevsky’s report of May 9, 2011, shows the Applicant presented with problems of despondency, insomnia and difficulties to function and that “the legal process of divorce has pummelled him, and he is in real distress” and “he has been going through divorce proceedings for a long time now…he lost more than half a million dollars to his wife.” Dr. Yaroshevsky diagnosed stress reaction with depressive symptomology and made suggestions for medication.

The WSIB report concluded that the “medical evidence indicates the cause of the worker’s stress reaction and depression was related to the divorce proceedings with his ex-wife and associated significant financial loss. There is no mention of psychological issues related to traumatic work events at the time the worker went off work.”

The Board is in agreement with WSIB and therefore finds the Applicant did not suffer a wage loss as a result of the incident in this claim. The request for wage loss for this second period is therefore denied.

Standard of Review

[11] The parties agree that on a judicial review proceeding, the standard of review is reasonableness. We agree.

[12] The Board is an expert tribunal tasked with adjudicating and resolving applications for compensation for victims of crime. In making determinations, with respect to its discretion under the Act to compensate victims of crime, the tribunal engages in interpretation of its home statute, with which it has particular familiarity and expertise. In these circumstances, the Divisional Court has held that the standard of review is reasonableness.

Analysis

[13] We see no error in the Board’s initial analysis of Mr. Reid’s claim dealing with the period of time when he was on disability. The Board considered the other factors that could be seen as having an impact on Mr. Reid’s psychological state, in particular his divorce, financial stress and other problems at work. However, the Board held that the assault likely exacerbated all the other issues and that it was therefore reasonable to provide compensation.

[14] The difficulty with the second aspect of the Board’s decision is that it is in direct conflict with the Board’s own reasoning in making a $1,900 award for wage loss for the preceding period. In making that award, the Board found that any additional difficulties Mr. Reid had in life were exacerbated by the psychological impact of the assault and that he was deserving of the maximum award for loss of income. The Board did not make any finding that after January 6, 2012 Mr. Reid had recovered from those psychological problems arising from the assault, such that any ongoing problems were caused by something else. Indeed, there was no evidence from which such a conclusion could be made. Rather, the Board simply held that Mr. Reid “did not suffer a wage loss as a result of the incident in this claim.”

[15] The Board relied in that regard on a decision authored by an Appeal Resolution Officer at the WSIB in which Mr. Reid’s claim was dismissed in its entirety, based on a lack of causation. In other words, the WSIB recognized Mr. Reid had psychological problems, but held that those problems were not as a result of anything that happened to him at work, specifically the assaults. Further, the Board relied on quotes set out in that WSIB decision from “reports” by medical experts indicating that Mr. Reid’s problems were not work related, but the Board did not have the medical reports themselves.

[16] Ironically, one of the doctors (Dr. Cohen) cited in the WSIB decision, completed a standard form Medical Report directed to the Board, which was in the Board’s file. In that report, Dr. Cohen (who was Mr. Reid’s family doctor) was asked to “indicate the area(s) of injury incurred AS A RESULT of the crime” to which he answered “Depression.” When asked the cause of the injury, he responded “Assault.” When asked if there were any other conditions which impacted or contributed to the degree of injury, he wrote in “N/A.” When asked to indicate the prognosis and estimated time to recover, he answered “Chronic.” That medical report was dated May 12, 2014.

[17] A careful reading of the WSIB decision illustrates the dangers of simply lifting quotes from a reference to material that was not actually before the Board. The Board stated, and apparently was of the view, that there was a “medical report” from Dr. Cohen dated March 29, 2010 in which Dr. Cohen stated that Mr. Reid was “suffering from ‘low back pain, other non-work-related physical conditions, ‘ugly’ divorce, financial issues and problems with a co-worker’.” In fact, there was no report from Dr. Cohen dated March 29, 2010, indeed no report at all by Dr. Cohen referred to by the WSIB. What the WSIB did have was chart notes from Dr. Cohen dating back to March 29, 2010, from which the author of the decision selectively quoted. The Board, in turn, selectively quoted from the selective quotes in the WSIB decision. The Board did not refer to the WSIB reference to Dr. Cohen describing Mr. Reid’s problems as “likely post traumatic stress”, nor did the Board refer to Dr. Cohen’s chart note of June 17, 2012 which apparently stated that Mr. Reid “was experiencing recurrent visions of the knife incident in 2008.” Chart notes are very different from medical reports. Drawing conclusions based on selective chart notes without looking at the overall context is extremely problematic. Doing so without even having the chart notes is even more problematic.

[18] Further, the Board had its own medical report from Dr. Cohen which does not support a conclusion that Mr. Reid’s difficulties were unrelated to the assault. The Board is not bound to accept one version over the other, but it should at least indicate why one version is accepted over the other, particularly given the problematic nature of the information taken second hand from the WSIB decision.

[19] A further difficulty is that the Board had two actual, detailed reports from an eminent psychiatrist, Dr. Cooper, in which Mr. Reid’s psychiatric difficulties are attributed to the assault and his problems are said to be ongoing. Again, the Board is not required to accept the opinion of Dr. Cooper. However, before rejecting the only actual medical evidence before it, it was incumbent upon the Board to provide some explanation for why it would take such a position.

[20] Counsel for the Board suggests that the reason Dr. Cooper’s report was rejected by the Board is because he did not refer to the other source of difficulties Mr. Reid was experiencing and his reports were therefore thought to be of less weight than the reports of Dr. Yaroshevsky, which were before the WSIB. Counsel relies on the Supreme Court of Canada’s decision in Newfoundland Nurses[^1] as authority for the proposition that where a tribunal’s reasons are not comprehensive, the reviewing court should look to the record to supplement those reasons.

[21] I recognize that Newfoundland Nurses establishes that the reviewing court is required to pay “a respectful attention to the reasons offered or which could be offered in support of a decision”. Further, the absence of comprehensive reasons is not, in and of itself, grounds for quashing the tribunal decision. However, a review of the Record before the Board in this case provides no assistance in supplementing the Board’s Reasons. The Board was simply mistaken about Dr. Cohen’s “report” to the WSIB and ignored Dr. Cohen’s report to the Board itself.

[22] The Board did not have Dr. Yaroshevsky’s reports, but relied instead upon sentences excerpted from those reports by the author of the WSIB decision. Without seeing Dr. Yaroshevsky’s reports, it is difficult to know why the Board chose to ignore Dr. Cooper’s opinion, which appears on its face to be consistent with Dr. Cohen’s report to the Board.

[23] Most importantly, it is impossible to reconcile the two decisions of the Board – one finding that Mr. Reid’s psychological difficulties were exacerbated by the assault and deserving of compensation and the other finding that those same psychological difficulties were unrelated to the assault.

[24] In the absence of any articulated reasons for these contradictory conclusions or any articulated reasons for disregarding the only medical evidence actually before it, it is not possible to understand what the Board’s reasoning process was. Further, it is not possible to say whether the conclusion reached by the Board was reasonable, or indeed which conclusion reached by the Board was reasonable. The Court in Newfoundland Nurses recognized that there are situations in which an absence of reasons will make it impossible to conclude that a decision is reasonable, stating (at para 16):

In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met.

[25] The reasons in this case do not allow us to understand why the Board made the decision it did, nor are we able to determine whether the decision is reasonable. What we are able to say is that a decision that takes directly opposite positions on the same question is not within the range of acceptable, rational outcomes contemplated by the Supreme Court in Dunsmuir.[^2]

Conclusion

[26] This is not a situation where one part of the decision may be severed and the other remitted to the Board. It is not possible to conclude which of the Board’s findings are rationally supported. It is necessary for the entire issue of compensation for wage loss to be considered afresh.

[27] Accordingly, the Board’s decision dated August 28, 2014 is quashed. Mr. Reid’s claim for compensation for wage loss is remitted to the Board to be heard by a panel differently constituted. Given that result, it is not necessary to deal with the issues raised by the appellant in respect of the December 1, 2014 decision. It is also quashed.

[28] If the parties are unable to agree on costs, written submissions (supported by Bills of Costs and dockets) may be exchanged between counsel and forwarded to the Court by no later than 30 days from the date of the release of these Reasons.

Molloy J. Hambly J. Hackland J.

Date: October 23, 2015

[^1]: Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), [2011] 3 S.C.R. 708, 2011 SCC 62 at paras. 12-14 and 16 [^2]: Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9 at para. 47