Decision #06/03 - Type: Victims' Rights

Preamble

An Appeal Panel hearing was held on October 3, 2003, at the request of the applicant. The Panel discussed this appeal on October 3, 2003.

Issue

Whether or not the time for the applicant to make an application for compensation should be extended; and

Whether or not the applicant qualifies as a spouse pursuant to subsection 45(1) of The Victims' Bill of Rights.

Decision

That the time for the applicant to make an application for compensation should not be extended; and

That the applicant does not qualify as a spouse pursuant to subsection 45(1) of The Victims' Bill of Rights.

Decision: Unanimous

Background

On January 16, 1991, the victim was involved in an altercation which led to his death. On February 20, 2002, the Manitoba Compensation for Victims of Crime Program received the following application forms from the applicant:
  1. Application for Compensation;
  2. Request for Extension of Application Deadline.
The applicant indicated that her husband was murdered when she was 4 months pregnant. She stated, "At the time of my husband's (common-law) death, I wasn't capable of looking for assistance. I went to live with my brother until my baby was born. I did not know about Manitoba Compensation for Victims of Crime Program until February 01, 2001 when my brother's niece had her husband murdered on January 19, 2002 (sic) in Calgary, Alberta. At this time, Victim Services visit with his niece and I was told about this during her visit to Thompson, MB."

In a letter to the applicant dated November 20, 2002, the program's manager indicated that eligibility for compensation was dealt with under several sections of The Victims' Bill of Rights ("The Act"). Section 51(1) required that an application must be filed within one year of the incident or within one year of becoming aware of the impact of the injuries resulting from the incident. Section 51(2) gave the director the authority to extend the period allowed to file the application. The policy only allowed for extensions where the applicant was unable to file as he/she was mentally or physically incapable of doing so.

The applicant was further advised that Section 45(1) provided two definitions of spouse. The first definition dealt with common-law relationships where there were no children born as a result of the relationship. In these cases, the couple must have lived together for at least five years. The second definition required that the couple must have lived together for at least one year provided that they had a child together. In this case, the first definition applied to the applicant as she and the victim did not have a born child at the time of the victim's death. The fact that the applicant was pregnant did not apply to these definitions. In summary, the applicant was advised that her application was not made within the legislative time line and that she did not qualify as a spouse as defined under section 45(1). This decision was upheld by the program's director in a letter dated January 10, 2003. As the applicant disagreed with the above decision, an oral hearing was held at the Appeal Commission to consider the issues as noted at the "Preamble" portion of this document.

Reasons

Section 51(1) of the Act specifically requires that an application for compensation must be made within one (1) year after the date of the event which results in a victim's injury or death. The Act allows the Director of the Manitoba Compensation for Victims of Crime Program, under section 51(2), the discretion to extend the time for making an application should it be considered appropriate. In the particular case at hand, the Director chose not to exercise his discretion to extend the application period with respect to the losses being claimed by the appellant applicant.

The Manitoba Compensation for Victims of Crime Program (the Program) has enacted an explicit policy statement that deals with application time limit. The policy states, in part, that "An extension will not be granted based solely on the fact that the applicant was unaware of the program." The appellant applicant openly admits that she was not aware that she may have been entitled to certain benefits under the Act until well after the time for filing an application had expired. The evidence confirms that there was no other reason for the late filing.

We find based on the evidence together with the above referred to policy that the time for the applicant to make an application for compensation should not be extended.

As to the second issue under appeal, the determination of this question becomes a moot point given our decision with respect to the first issue. However, we note that the deceased, although separated, was not legally divorced at the time of his demise. In addition, the evidence reveals that the deceased's "spouse" filed an application for benefits on behalf of herself as well as the 3 children born of the marriage to the deceased within the required time period and benefits were paid accordingly.

We believe that the section in the Act, which deals with a common law relationship, contemplates that the victim must either be single or legally divorced in order for a recognized common law relationship to exist. Given the fact that the victim was still legally married at the time of his death the applicant cannot therefore qualify as a spouse pursuant to subsection 45(1) of the Victims' Bill of Rights.

Panel Members

R. W. MacNeil, Presiding Officer
P. Challoner, Commissioner
B. Leake, Commissioner

Recording Secretary, B. Miller

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 3rd day of November, 2003

Back