The Appeal CommissionThe Workers Compensation Act of Manitoba

There are two issues before the panel. Each issue will be addressed separately.

1. Whether or not time for making an appeal should be extended

The first issue concerns delay in filing an appeal with the Appeal Commission. The timelines for filing an appeal from a decision made on reconsideration are set out in section 60 of The Victims’ Bill of Rights (the “Bill”) as follows:

Right to appeal decision made on reconsideration

60(1) A person who receives a notice under subsection 59(2) (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).

The date of the reconsideration decision letter is December 11, 2006. In order to comply with the timelines set out in the Bill, the applicant would have had to file an appeal within 30 days of receiving the December 11, 2006 letter. She did not. The appeal was not filed until November 5, 2008.

The applicant alleges that she did not receive the reconsideration decision letter. Although there was an earlier indication in the file material that the applicant may have moved away from the address shown in the letter, at the hearing, she confirmed that in fact, she did not move from that location until February, 2007. Nevertheless, she indicated that she still never received the December 11, 2006 decision.

The panel notes that Manitoba Regulation 214/98 promulgated pursuant to the Bill makes provision for service of documents as follows:

Service of documents

18(1) Where a notice or other document is required or authorized under the Act or this regulation to be given to or served on a person, service may be effected personally or by mailing a copy to the person by registered mail at the most recent address of the person appearing in the director’s records.

There is no indication on the December 11, 2006 letter or in the file material that the letter was sent to the applicant by registered mail, either in December 2006 or when it was subsequently resent in September 2008, nor is there documenting evidence that the applicant had received the letter.

In view of the applicant’s evidence that she did not receive the letter and the fact the letter does not appear to have been sent by registered mail, as required by the regulations, the panel is satisfied that there is a reasonable excuse for the failure to file an appeal within the 30 day time limit and we are prepared to grant an extension of time for appeal.

2. Whether or not the application is acceptable

The second issue before the panel is whether or not the application is acceptable.

Subsection 50(1) of the Bill outlines the persons who may apply for compensation, as follows:

An application for compensation may be made

(a) by a victim in respect of his or her injury;

(b) by a dependant in respect of a victim’s death;

(c) by a person who incurs an expense or other pecuniary loss as a result of a victim’s injury, if the maintenance of the victim is the responsibility of the person; or

(d) by a person who incurs funeral expenses in respect of a victim’s death.

In order to be eligible to make application for compensation, an individual must qualify under one of the four subparagraphs.

The applicant indicates that she is applying for compensation in the form of counseling, which she needs to help her deal with her loss. The primary basis upon which the applicant’s claim was rejected by the acting director was that the applicant could not be considered a spouse or common-law partner in accordance with the criteria specified in the legislation. If the applicant was a spouse or a common-law partner, she would fall within Subsection 45(2) definition of “victim” and therefore would be eligible to apply for compensation under Subsection 50(1).

In order for this appeal to be successful, the panel must find that the applicant falls within the definition of “common-law partner” as contained in the Bill. We are able to make that finding.

Subsection 45(1) of the Bill defines “common-law partner” as follows:

“common-law partner” of a victim means

(a) a person who, with the victim, registered a common-law relationship under section 13.1 of The Vital Statistics Act, and who was dependent on the income of the victim and cohabiting with the victim at the time of the victim’s death, or

(b) a person who, not being married to the victim, cohabited with him or her in a conjugal relationship

i. for at least three years immediately before the victim’s death, during which the person was dependent on the income of the victim, or

ii. for at least one year immediately before the victim’s death, if a child of the union was a dependent of the victim at the time of the victim’s death.

In the panel’s opinion, the relevant portion of the definition is s. 45(1)(b)(ii), namely: “a person who, not being married to the victim, cohabited with him or her in a conjugal relationship … for at least one year immediately before the victim’s death, if a child of the union was a dependent of the victim at the time of the victim’s death.”

When filing her application, the applicant was very up front in describing her unconventional relationship with the deceased. She indicated that she was the deceased’s “life partner/co-parent” and that they “lived together with our child.” She was forthright in admitting that they did not share a bed. Based on this information, the Program found that there was not a conjugal relationship and that therefore she did not meet the eligibility criteria as a common-law spouse.

In the panel’s opinion, physical intimacy is only one factor to be considered when determining whether or not a conjugal relationship exists. Black’s Law Dictionary defines conjugal as: “Of or belonging to marriage or the married state; suitable or appropriate to the married state or to married persons.”

In a recent Manitoba Court of Queen’s Bench case, Bullied v. Kallen, 2008 MBQB 268, Mr. Justice Menzies considered the factors necessary to find that a conjugal relationship exists. It was noted that although sharing a common habitual residence is a factor the court will consider, whether or not the parties share a common residence is not determinative. The case Campbell v. Szoke [2003] O.J. No. 3471 (Ont. S.C.J.) was cited for the proposition that:

The fact that parties maintain separate residences does not prevent the finding of cohabitation. The court must look at all of the circumstances and consider the reasons for maintaining another residence … Whether a couple has cohabited continuously is both a subjective and an objective test. Intention of the parties is important. When there is a long period of companionship and commitment and an acceptance by all who know them as a couple, continuous cohabitation should be found.

Mr. Justice Menzies outlined a non-exhaustive list of generally acceptable criteria for determining whether or not a conjugal relationship exists. The factors listed included shared shelter, sexual and personal behaviour, services, social activities, economic support, and children’s as well as the society’s perception of the couple. It was noted that not all of the characteristics must be present to determine that a relationship is conjugal, and those present may vary in degree from relationship to relationship. The facts of each case are determinative of the nature of each relationship.

In the present case, the applicant indicated that she and the deceased first became a couple in 1989. Their child was born in 1991. They were very young and it was a stressful time. They separated in 1993 and the deceased moved out of province. One year later, he returned to Manitoba, and they moved in together again. For the next ten years, they commenced a pattern of alternately living together for periods of six months to a year, then living apart for a period of time. Even during times when they lived in separate apartments, they still remained in constant contact with one another, and the deceased would often spend weekends at the applicant’s residence. They parented their child together. The reasons why they lived apart varied and included reasons of employment, financial, health and personal reasons. In early 2004, the deceased had personal problems which he needed to address so he went to stay with a friend for a few months. By September, 2004, he returned back to the applicant’s residence and they remained living together with their child as a family until his death on March 6, 2005.

The subsection 45(1)(b)(ii) definition of “common-law partner” requires that the parties cohabit in a conjugal relationship for at least one year immediately before the victim’s death. It is the panel’s opinion that even though the deceased lived in a separate residence from approximately February 2004 to September 2004, the relationship between the parties was such that they were still cohabiting in a conjugal relationship, within the meaning of the definition contained in the Bill. In coming to this determination, the panel relies on the following evidence:

• The applicant indicated that they considered themselves a family, and that all of their friends and family viewed and treated them as a couple;
• The parties shared the responsibilities of parenting their child;
• The deceased regularly provided child maintenance monies to the applicant as well as cash over and above the court ordered amounts;
• The applicant and deceased went to movies and social events together;
• The deceased spent every Christmas with the applicant and their child at the home of the applicant’s mother;
• Neither the applicant nor the deceased ever cohabitated with another person in a romantic capacity;
• At the time of his death, the parties were about to go on a vacation together with the deceased’s extended family;
• Even when they lived apart, the parties remained in regular contact with one another;
• The applicant performed services for the deceased, like doing his laundry and making meals for him, even when he resided separately. When he was en route to work, the deceased would come by the applicant’s residence to pick up a lunch that she made for him;
• The applicant would assist the deceased in signing for a lease or a cell phone account when they were apart, as the deceased’s credit rating was poor;
• The period from February to September 2004 was a “time out” period when the deceased moved away from the shared living arrangements to enable him to deal with a personal issue. During that time, the parties still spoke every week and she helped to arrange for counseling for him.

Overall, it was clear to the panel that the applicant and the deceased were involved in a long term relationship of companionship and commitment. Although they lived in separate residences from time to time, they still continued to act as a family unit, and were viewed as such by their family and friends. We therefore find that the applicant does fall within the definition of “common-law partner” as set out in the Bill and is therefore eligible to make application for compensation.