The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on October 7, 2003, at the appellant's request.

Issue

Whether or not the time for making an application for compensation should be extended.

Decision

That the time for making an application for compensation should be extended.

Decision: Unanimous

Background

On January 15, 2003, the Manitoba Compensation for Victims of Crime Program received an "Application for Compensation" form filed by the applicant for sexual abuse which allegedly took place on January 1, 1989. On January 29, 2003, following a review of the file information, the applicant was informed by the program's case manager that his claim was ineligible for compensation as his application was not filed within the required two years from the date of the criminal injury. As the applicant disagreed with the decision, the case was forwarded to the program's director for reconsideration.

In correspondence to the applicant dated April 11, 2003, the program's director stated that the decision to deny the claim was made in accordance with section 6(2)(a) of The Criminal Injuries Compensation Act as it was filed with the program after the two-year time line had expired. The director cited Section 51(2) of The Victims' Bill of Rights which allowed him to extend the time. In this regard, he stated, "However, the policy only allowed for extensions where the applicant was a minor or was mentally or physically unable to file the application. I am aware that you were a minor at the time of the abuse however you were over 18 years of age when the incident was reported to the police. The application for compensation was not filed with the compensation program for another 4 years after the initial disclosure was made." On May 6, 2003, the applicant appealed the director's decision and a non-oral file review was arranged.

Reasons

This case involves consideration of an issue under The Criminal Injuries Compensation Act (CICA). The crime, in this case, was one of sexual assault against the claimant.

His claim for compensation was denied on the grounds that it had not been filed within two years of the date of the injury, as required by the Act. In denying the application, the Case Manager also noted that a provision in The Victims' Bill of Rights (VBR), the successor statute, allows the time limitation (now one year) to start when the claimant becomes aware of the nature and effects of the injury. The Case Manager notes that he fails on this basis, also, as he was obviously aware when he made his report to the police, but still waited more than four years to file a claim.

His request for reconsideration was denied by the Program Director.

He then appealed to the Appeal Board. The specific issue before the Appeal Panel was whether or not the time limit for making an application for compensation, under CICA, should be extended.

For his claim to be successful, the Panel would have to determine that the Act would allow such an extension. We have concluded that the time limit should be extended.

We came to our decision following a thorough review of the claim file and consideration of the issue.

In coming to our conclusion, we relied on the following findings of fact:

• The claimant was sexually assaulted, as a child, by an adult person who was his hockey coach, a respected school teacher and a family friend.
  
  
• This occurred in the late-1980's, during which time the claimant was about 10 - 12 years old.
  
  
• In 1990, he and his family moved to Ontario.
  
  
• In 1998, the claimant reported the incident to the Ontario Provincial Police.
  
  
• In June 2002, the perpetrator was found guilty of five counts of sexual assault.
  
  
• In December 2002, the claimant filed for compensation.

Subsection 6(3) of the former act - CICA - provides that:

"…the board may, where it is satisfied that because of extenuating circumstances an application was not made within two years, extend the time for applying for compensation."

Under the new act - VBR - the corresponding provision - subsection 51(2) - reads:

"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."

Although the crime occurred while the former act was still in place, accepted legal opinion is that we should use the test contained in the new act. Thus, the Panel felt that we could only extend the period for application if we considered it appropriate to do so. We did do so.

First, we note that sexual assault is often not like most crimes for which one might claim compensation. While there is no such thing as a "typical" case, more often than not, claims for compensation involve loss of property through robbery or damage, or physical injuries suffered as a result of a (non-sexual) assault. Very often in such cases, there are police reports and medical examinations made in the near aftermath of the incident. Often, there have been witnesses to the event.

In sexual assault cases, especially of a minor, these "tell-tales" do not exist. As a result, an allegation of sexual assault may not be sufficient to trigger compensatory benefits. Until a conviction is rendered, it is only the victim's word against that of the alleged perpetrator. Given this, we feel that it is not unreasonable, or unexpected, for such a victim to await conviction prior to making application for compensation. In this case, the claimant filed his application some six or seven months after the conviction.

Second, the claimant moved away from Manitoba in 1990, at which time he was just entering his teens. He had no knowledge of the compensation scheme. There is no evidence that he became aware of the program until after the conviction. We note that Program Policy stipulates that lack of awareness of the program is not sufficient to warrant extension. However, it is our view that this provision does not prevent us from extending the time limit, if we deem it appropriate to do so.

In this regard, the Ontario police officer, to whom the case was originally reported, wrote to the Appeal Board that he had not informed the victim of the existence of the program until after the conviction was obtained. He wrote that it was a deliberate decision on his part to wait until after the conviction. He believed it was more important for the claimant to receive counselling than to go after compensation.

Given the difficulties associated with pursuing such a conviction, it is not unreasonable for the claimant to focus on that aspect and not even think about the matter of compensation.

Third, for public policy reasons, The Limitations of Actions Act, C.C.S.M. c. L150 was recently amended to remove the time limitations for certain assaults. Subsection 2.1(2) reads, in part:

"An action for assault is not governed by a limitation period and may be commenced at any time if

(a) the assault was of a sexual nature …."

The legislature made these amendments, in large part, to address the particular sensitivities which surround cases of sexual assault. These sensitivities often make it very difficult for the victim to proceed against the perpetrator in a timely manner.

Indeed, the biggest challenge often associated with sexual assault is the reluctance of the victim to report the crime, especially where there is a fiduciary or power relationship in which the victim may strongly believe that his or her word will not be accepted. Such is the case with the claimant in this appeal.

It is our conclusion that each of these three points is sufficient for us to find it appropriate to allow for the extension of the time period for making application for compensation.

Accordingly, the appeal is allowed.

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 November, 2003