Decision #02/05 - Type: Victims' Rights

Preamble

An Appeal Panel hearing was held on December 15, 2004, at the claimant's request. The Panel discussed this appeal on the same day.

Issue

Whether or not the time frame for filing the appeal should be extended pursuant to the provisions of subsection 60(2) of The Victims' Bill of Rights; and

Whether or not the application for compensable is acceptable.

Decision

That the time frame for filing the appeal should not be extended pursuant to the provisions of subsection 60(2) of The Victim's Bill of Rights; and

Given the Panel's decision on the first issue, the Panel was not required to consider the second issue.

Decision: Unanimous

Background

In May 2002, the claimant filed a claim with the Compensation for Victims of Crime Program (the program) for an assault that took place on April 2, 2002 which resulted in injuries to his neck, upper and lower back, knees, feet and index finger. The claimant noted on his application form that he reported the incident to the police on April 8, 2002.

In a decision dated July 24, 2002, the program's case manager notified the claimant that his claim was ineligible for compensation based on subsection 46(1) of The Victims' Bill of Rights (the VBR). The case manager stated, in part,
"…we have now had the opportunity to speak to the police officers who investigated the incident of April 2, 2002. They have advised our program that you were told by them that no criminal charges would be laid in this matter as they were of the opinion that no criminal incident occurred. The police advised us that you came into residence (sic) at [street address] uninvited and when asked to leave, that no excessive force was used to remove you from the premises. There is insufficient evidence in this case to verify that a criminal incident occurred."
On August 20, 2002, the claimant requested reconsideration of the above decision, contending that he had confirmed by telephone that he was attending the residence between 9 and 10:00 a.m. He also noted that he was being treated by a doctor for bruises and that his jacket was ripped as a result of the assault.

In a letter dated December 2, 2002, the program's director confirmed that the original decision to deny the claim had been appropriate. The director stated,

"…in your case the police determined that there was no cause to lay charges against Mr. [name]. It is our understanding that Mr. [name] was evicting you from his home and did so without the use of excessive force.

The medical report does indicate that you received some injuries. However, I note that you did not attend the hospital and that you did not report the incident to the police for 6 days. Based on this information, the opinion of the police seems reasonable."

The Director also advised the claimant that if he disagreed with the above decision, section 60(1) of the VBR gave him the right to file an appeal and that he had 30 days to complete the attached form and return it to the Appeal Commission. On September 30, 2004, the Appeal Commission received the claimant's appeal request and an oral hearing was arranged.

Reasons

We were asked to decide two issues. The first issue was whether the time frame for filing an appeal should be extended pursuant to the provisions of subsection 60(2) of the VBR. The second issue was whether the application for compensation is acceptable.

With respect to the first issue, after considering all the evidence including the evidence provided by the claimant at the hearing, we did not find this to be an appropriate case to extend the time limit for filing an appeal. We found that the time limit for filing an appeal should not be extended.

Given our decision on the first issue, we were not required to address the second issue.

Issue One

The claimant filed a claim for compensation arising from an incident alleged to have occurred on April 2, 2002. The claim was denied and the claimant requested reconsideration. In a letter dated December 2, 2002, the program director confirmed the original decision and advised the claimant of his right to appeal. The decision letter specifically provided that:

Right of Appeal

If you disagree with this decision, section 60(1) of the Act gives you the right to file an appeal. Under this section you have 30 days to complete the attached form and return it to the Appeal Commission.

The claimant's appeal was received at the Appeal Commission on September 30, 2004, a date well in excess of the 30 days provided in the legislation. However, subsection 60(2) provides the Appeal Commission with the authority to extend the time for appeal if it is satisfied that the person appealing has a reasonable excuse for failing to appeal within the 30 day period.

We heard evidence from the claimant regarding his failure to file an appeal within the 30 day period. He stated that he was unable to file an appeal because he was either incarcerated in a penal institution or under medical care in a hospital. He was uncertain regarding the specific dates of his incarceration but thought he was incarcerated during the following periods:
  • October 19, 2002 to late March 2003
  • late March 2003 to April 25, 2003
  • August 19, 2003 to October 31, 2003
In addition the claimant advised that he was in hospital from November 7, 2003 to December 23, 2003.

We did not find that the claimant has provided a reasonable excuse for failing to appeal. Although he was incarcerated for a significant period of time, there was a period of time after his release from custody in April 2003 during which he could have filed an appeal. He did not appeal at the first available time after his incarceration, in fact he did not appeal until September 30, 2004. There is no evidence to suggest that he was medically or psychologically unable to file the appeal. We did not extend the time for appeal.

Issue Two

Given our decision on the first issue we were not required to consider the second issue, being whether the claim for compensation was acceptable.

As an aside, we note from the file and the claimant's evidence that the police had fully investigated the incident and declined to lay charges against the second individual, stating that the homeowner had evicted the claimant from his home without the use of excess force. Under those circumstances and in the absence of a crime, we would have had difficulty in accepting the claim, even if the claimant had been granted an extension of time to file his appeal.

The claimant's appeal is declined.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 26th day of January, 2005

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