The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on April 9, 2003, at the request of the appellant. The Panel discussed this appeal on April 9, 2003 and again on May 13, 2003.

Issue

Whether or not the Appeal Commission has the jurisdiction to hear an appeal from a refusal of the Director of the Compensation for Victims of Crime Program to extend the time for making an application for compensation under Subsection 51(2) of The Victims' Bill of Rights.

Decision

That the Appeal Commission does have the right to hear such an appeal.

Decision: Unanimous

Background

The claimant submitted an application for compensation under Part 5 of The Victims' Bill of Rights, C.C.S.M. C. V55, on May 18, 1999. He identified the date of the injury giving rise to his application as having occurred on January 6, 1976.

On May 31, 1999, the claim was denied on the grounds that subsection 28(1) of The Victims' Rights Act (as it then was) stipulated that an application must be made within one year after the date of the incident or within one year after the date where the victim becomes aware of the effects of the incident. Upon reconsideration, the Director upheld this decision on November 30, 1999.

The claimant appealed that decision to the Appeal Commission. The Director argued that, under the Act, that decision is not appeallable.

The issue before the Appeal Panel was a very narrow one: whether or not the Appeal Commission has the jurisdiction to hear such an appeal.

In this deliberation, we are not considering the issue as to whether or not the limitation period should be extended in this case. Nor, are we considering the merits of the application itself.

Reasons

Relevant Legislation

The injury that forms the substance of the application occurred at a time when The Criminal Injuries Compensation Act, S.M. 1970, c.56, was in effect. The latter statute was replaced by The Victims Rights Act in 1998, subsequently renamed The Victims' Bill of Rights, C.C.S.M. c.V55 (the VBR) and renumbered. The sections listed below are from the current statute, the VBR. The provisions of the VBR will govern the issue currently under consideration.

Time limit for applying
51(1) Subject to subsection (2), an application for compensation must be made within one year after the date of the event that results in the victim's injury or death, or within one year after the date when the victim becomes aware of or knows or ought to know the nature of the injuries and recognizes the effects of the injuries.

Extension of time
51(2) The director may, before or after the expiry of the one year period, extend the time for making an application if he or she considers it appropriate.

Director to evaluate applications
52(1) On receipt of an application for compensation, the director shall determine, in accordance with this Act and the regulations, whether compensation is payable and, if so, the amount.

Director may request information
52(2) The director may

1. request the applicant to provide, or authorize the director to obtain, information that the director considers necessary to make a determination under subsection (1); and
2. consider any statement, document or information that he or she considers relevant to making the determination.

Director to give written notice of decisions
59(1) The director must give written notice

1. to the applicant of a decision made under section 52 respecting an application for compensation; and
2. to a person receiving compensation, of a decision affecting the nature or amount of compensation payable to the person.

Notice to include information on reconsideration
59(2) A notice given under subsection (1) shall include information on the right to request a reconsideration under subsection (3).

Right to request reconsideration
59(3) A person who receives notice under subsection (1) and is not satisfied with the decision of the director may, within 60 days after receiving the notice, request that the director reconsider the matter and may, for that purpose, provide additional information to the director.

Director to give written notice of reconsideration
59(4) After reconsidering a matter, including any additional information provided by the person requesting the reconsideration, the director shall give written notice of his or her decision to the person and shall include in the notice information on the right to appeal under section 60.

Right to appeal decision made on reconsideration
60(1) A person who receives a notice under subsection 59(4) (reconsideration) may appeal the decision to the appeal board within 30 days after receiving the notice.

Extension of time
60(2) The appeal board may extend the time for appeal if it is satisfied that the person appealing has a reasonable excuse for failing to appeal within the time referred to in subsection (1).

Powers of appeal board
64(1) The appeal board may confirm, vary or rescind the decision of the director.

Procedure

An oral hearing was held at the offices of The Appeal Commission on April 9, 2003. Present at the hearing was the legal counsel representing the Director of Victims Support Services, as well as the claimant.

The Director's counsel had submitted a written submission a number of months earlier prior to a hearing in October 2002, which had been adjourned sine die. This submission formed the basis of his argument at the most recent hearing.

The claimant presented no argument at this hearing.

The Appeal Commission had previously sought a legal opinion in respect of this matter. This legal opinion was held to be part of the file record and formed the argument for the position opposite to that of the Director.

Subsequent to the hearing, the Director's counsel provided the Panel with some further information and case law in respect of statutory interpretation. This information was considered by the panelists in their deliberation.

The Director's Arguments

At issue is whether or not the Appeal Commission has the jurisdiction to consider an appeal of decision made by the Director under subsection 51(2) of the VBR.

The Director's legal counsel submitted that the commission does not have such jurisdiction.

In support of that position, he argued that a number of sections of Part 5 of the VBR operated to limit the jurisdiction of the Appeal Commission to consider appeals of only decisions made under section 52 of the act. Decisions of the Director made under other sections, such as section 51, are not appeallable to the Commission.

Counsel argued that the jurisdiction of the commission is triggered by subsection 60(1):

60(1) A person who receives a notice under subsection 59(4) (reconsideration) may appeal the decision to the appeal board within 30 days after receiving the notice.

Reconsideration is, in effect, a first level of appeal. Pursuant to subsection 59(3), a person not satisfied with the decision in respect of his or her application for benefits may request the director to reconsider that decision. Counsel further submitted that, under subsections 59(1) and (2), the subject of the reconsideration was limited, in this case, to the decision made under section 52.

59(1) The director must give written notice

(a) to the applicant of a decision made under section 52 respecting an application for compensation; and

(b) to a person receiving compensation, of a decision affecting the nature or amount of compensation payable to the person.

59(2) A notice given under subsection (1) shall include information on the right to request a reconsideration under subsection (3).

59(3) A person who receives notice under subsection (1) and is not satisfied with the decision of the director may, within 60 days after receiving the notice, request that the director reconsider the matter and may, for that purpose, provide additional information to the director.

59(4) After reconsidering a matter, including any additional information provided by the person requesting the reconsideration, the director shall give written notice of his or her decision to the person and shall include in the notice information on the right to appeal under section 60.

(As the claimant is not receiving compensation, subsection 59(1)(b) is not relevant to this consideration.)

In summary, this line of argument says that subsection 60(1) allows for an appeal of only those matters that have been reconsidered, which reconsideration can only consider decisions made under subsection 52.

In considering section 52, only subsection (1) is relevant to this consideration:

52(1) On receipt of an application for compensation, the director shall determine, in accordance with this Act and the regulations, whether compensation is payable and, if so, the amount.

The Director's counsel submitted that the Director's determination of whether or not compensation is payable does not include the Director's preliminary determination as to whether the timeframe within which to make application will be extended. Counsel noted that that decision is made, not under section 52, but under section 51:

51(1) Subject to subsection (2), an application for compensation must be made within one year after the date of the event that results in the victim's injury or death, or within one year after the date when the victim becomes aware of or knows or ought to know the nature of the injuries and recognizes the effects of the injuries.

51(2) The director may, before or after the expiry of the one-year period, extend the time for making an application if he or she considers it appropriate.

Counsel's position is that a decision made under section 51 is a discrete happening, having no part of the determination as to whether the claimant is entitled to benefits. He argued that unless the Director makes a positive decision when considering the timeliness of the application, section 52 does not come into play at all.

Thus, it follows that the Appeal Commission has no jurisdiction to entertain an appeal of a denial to extend the time for an application to be filed.

Opposing Arguments

Arguments opposing the Director's position were submitted by way of a legal opinion prepared for the Appeal Commission by independent counsel.

This legal opinion noted that there are two possible interpretations of the Act, the first being that of the Director, as described above. The second interpretation is "that a decision by the Director as to whether to extend time pursuant to subsection 51(2) of the Act is part of the determination under subsection 52(1) as to whether or not compensation is payable." As such, the decision not to extend time for making an application is part of the decision subject to reconsideration and, by extension, forms part of the matter which can be appealed to the appeal board.

In support of this interpretation, the opinion notes that the Act is social welfare legislation and, as such, is generally "to be liberally construed so as to advance the benevolent purpose of the legislation." It further noted that "Where reasonable doubts or ambiguities arise, they are to be resolved in favour of the claimant." This position was supported by the Supreme Court of Canada in Abrahams v. A.G. Canada. In this case, which concerned entitlement to Employment Insurance benefits, Wilson J. wrote:

"Since the overall purpose of the Act is to make benefits available to the unemployed, I would favour a liberal interpretation of the re-entitlement provisions. I think any doubt arising from difficulties of the language should be resolved in favour of the claimant."[1]

The opinion goes on to state that the "primary impetus behind the liberal construction of social welfare legislation is a desire to promote the legislator's benevolent social goals."

Analysis

For the Panel, the resolution of the issue before us came down to a matter of statutory interpretation. More specifically, did we accept the narrow interpretation of the Director or the liberal construction as presented in the legal opinion prepared for the Appeal Commission?

In his presentation before us, the Director's counsel made reference to case law and some textbooks which addressed the matter of statutory interpretation. At our request, subsequent to the hearing, he provided us with copies of the referenced material.

Among this material were excerpts from Sullivan and Driedger on the Construction of Statutes,[2]. In this book, Professor Sullivan discusses the so-called "Modern Principle" as described by Driedger in his first edition of this textbook. He wrote:

"Today there is only one principle or approach, namely, the words of the Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament."[3]

This approach to statutory interpretation was considered by the Supreme Court of Canada in Re Rizzo and Rizzo Shoes Ltd.[4]. The Director's counsel provided us with a copy of this decision. It is also considered in Professor Sullivan's book (noted above.)

Professor Sullivan noted that the Ontario Court of Appeal had relied on the plain meaning of the words in the relevant statute, but that the Supreme Court rejected this interpretation as an unacceptable approach as it is incomplete. Iacobucci J., in writing for the Court, adopted the "modern principle", based, at least in part, on Driedger's recognition "that statutory interpretation cannot be founded on the wording of the legislation alone."[5]

Iacobucci also relied on s. 10 of the Ontario Interpretation Act, RSO 1980, c. 219, which "provides that every Act 'shall be deemed to be remedial' and directs that every Act shall 'receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit."[6]

Sullivan further noted that, in analyzing the purpose of the Act, Iacobucci considered the consequences that would flow from adopting the plain meaning, pointing out that 'it is a well established principle of statutory interpretation that the legislature does not intend to produce absurd consequences.'" She continues: "Finally, he noted that benefit-conferring legislation such as the ESA [Employment Standards Act] attracts a liberal interpretation, such that any doubt arising from difficulties of language should be resolved in favour of the claimant."[7]

Professor Sullivan concluded this consideration with the following comments:

"The Supreme Court of Canada's approach in the Rizzo case is exactly what is contemplated by the modern principle. Even though the language …. did not seem to be ambiguous, …. the Court nonetheless looked at the entire context, including the purpose and scheme of the Act and the consequences of adopting one interpretation as opposed to another."[8]

While this material may provide support for the narrower approach as espoused by the Director, we find that it provides greater support for a liberal approach to statutory interpretation.

Conclusion

The Panel has concluded that, in considering the case before us, using the so-called "modern principle" is the correct approach.

Part 5 of The Victim's Bill of Rights, subtitled "Compensation for Victims of Crime, is clearly benefit-conferring. Thus, pursuant to Iacobucci's reasoning in Rizzo, it attracts a liberal interpretation. Furthermore, as in Rizzo, we find additional support in section 6 of The Interpretation Act [9]of Manitoba, which reads:

"Every Act and regulation must be interpreted as being remedial and must be given the fair, large and liberal interpretation that best ensures the attainment of its objects."

In passing The Victims' Bill of Rights, and its predecessor statutes, the legislature clearly wished to provide some benefits to those who, through no fault of their own, incurred financial hardships or losses as a result of being a victim of a crime.

The Act is clear in stating that there is a limitation period of one year, within which a victim may apply for such compensation. However, it is also clear in allowing the Director to extend this time period where appropriate.

It is our view that whether or not one meets the limitation period is a key element in the acceptability of the claim. The right to appeal all elements of claim acceptability must be fundamental to any adjudicative process related to this type of legislation. To do otherwise would produce "absurd consequences." In our view, this would be contrary to the intentions of the legislature.

Thus, our ultimate conclusion is that a decision by the Director in respect of

extending the limitation period, pursuant to subsection 51(2) of the Act, forms part of the determination under subsection 52(1) on claim acceptability and, as such, may be appealed to the "Appeal Board."

Footnotes

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Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 19th day of June, 2003