The Appeal CommissionThe Workers Compensation Act of Manitoba

Overview

After considering the record as a whole, the panel has determined that the claim is not acceptable given that:

l the claim was not filed within the limit set out in subsection 51(1) of the VBR and it is not appropriate in the circumstances to grant an extension of time; and,

l alternatively, based upon a balance of probabilities, even if an extension of time was granted, the claim should be denied based upon a number of the grounds set out in subsection 54 of the VBR.

The Law

Provision for the compensation of victims of crime is set out in Part 5 of the VBR. Under subsection 46 (1) (a), a person may make an application for compensation if they are injured as a result of an event in Manitoba that:

(a) is caused by an act or omission of another person that is an offence under the Criminal Code.

Section 51 (1) states that an application for compensation must be made within a year after the date of the event resulting in an injury or within a year of the time the victim becomes aware of or ought to know the nature of the injuries and recognizes the effects of the injuries. Section 51 (2), allows for an extension of the time for filing the application where it is considered appropriate.

Sections 52 through 58 of the VBR provide some insight into the applicable considerations in determining both eligibility for and the amount of compensation. Of particular note are sections 53 and 54.

Section 53 obliges attending professionals and hospitals to provide reports respecting the injury, care or treatment. Section 54 makes provision for compensation to be denied or reduced.

Under the authority of section 61 of the VBR, the Workers Compensation Appeal Commission has been designated to hear appeals relating to claims for compensation. Pursuant to subsection 64(1), the Commission may confirm, vary or rescind the decision of the director. In making its decisions, the Commission is not bound, either expressly or by necessary implication, by the policies of the Compensation for Victims of Crime Program.

Should an Extension of Time be Granted?

There does not appear to be a dispute that the application for compensation was filed outside the one year time limit. Based on a balance of probabilities and considering the injuries detailed by the appellant, the panel has determined that the nature and extent of the appellant's injuries would have been readily apparent either on the day of the injury or within days of the injury.

Whether one starts from the date of the incident leading to the injury or from the date at which the appellant ought to know the nature of the injuries and recognized the effects of the injuries, the application for compensation was filed approximately 4 months past the time frame set out in subsection 51(1) of the VBR.

The appellant seeks a determination that an extension of time would be appropriate in the circumstances. He argues that he did not “find out about victim services until, I believe, the end of July, 2009, and I had to gather all of my information about these two incidents, go through it all and get together my reports.”

In considering whether it is appropriate to grant an extension, consideration must be given to the statutory intent as they relate to the specific facts of this case.

The Statutory Intent

In the context of compensation for injuries suffered as a result of inappropriate acts, statutory time limits are not uncommon. There may be a variety of reasons why the Legislature in its wisdom has put such time limits in place. For example, time limits may be instituted for practical reasons to ensure that any complaint can be investigated on a timely basis when memories are fresh; they may exist to ensure the fiscal integrity of a program so that reasonable confidence can exist that there will not be an unplanned for demand relating to claims that are relatively old.

In considering subsection 51(1) of the VBR, it is significant that the trigger point for the time limitation is not the date at which the victim became aware of the right to compensation but the date at which the incident occurred or the date at which the victim ought to have become aware of the nature and effects of his injuries. The legislative intent would appear to be that once a victim has become aware of the nature and effects of his injury, then the victim has an obligation to make himself aware of any rights he may have for compensation and to seek to realize these rights within a reasonable period of time.

Section 51(2) provides an authority to extend the time limit where appropriate. This suggests that the individual circumstances of each case must be taken into account in the exercise of the decision maker's discretion. Although it conceivably might be a factor taken into account, there is no express obligation under s. 51(2) to extend the time limit in circumstances where the victim knew the extent of his injury but was not aware of the right to seek redress under the VBR.

Guidance as to when the exercise of the decision maker's discretion may be appropriate can perhaps be found in other sections of the VBR. For example, the legislation recognizes that children (s. 50(2)) or persons who are mentally incompetent (s. 50(3)) may not be in a position to make an application on their own behalf.

Extending the reasoning that underlays these provisions, it is certainly arguable that it may be appropriate depending upon the specific circumstances of the case, to extend the time limit for filing in circumstances where a guardian or substitute decision maker has failed to meet the time limit. The logic would be that it would be inappropriate to penalize those who are not legally competent for the failure of another person to exercise rights on their behalf.

While it is not binding upon us, the panel notes that the Compensation for Victims of Crime Program's policy provides for a case by case analysis of whether the time limit for an application should be extended. From the Program's perspective factors which might support a decision to approve an extension include cases where the applicant was a minor or mentally incompetent or the applicant was medically or psychologically incapable of filing.

Again, these are circumstances where the victim was not in a position to make themselves aware of their rights to seek compensation or was not physically or mentally capable of exercising these rights.

In summary, the clear legislative intent is that once victims become aware of the nature and extent of their injuries, they have an obligation to inform themselves of their rights and to avail themselves of these rights in a reasonable time period. While extensions may be granted, the decision to do so is discretionary. Some of the factors which might be relevant to a case by case exercise of that discretion are the competence of the injured victims and their physical and mental capacity to apply.

Application of the law to the facts in considering whether to grant the extension of time

At the onset, it should be noted that there is some reason to question the accuracy of the appellant's recollection that he did not find out about victim services until the end of July 2009. The police narrative report, indicates that when the appellant visited the Public Safety Building on May 20, 2009, he was “interested in obtaining the incident # and the number to victim services…”. An inference certainly could be drawn that the victim was aware of victim services before the end of May 2009 or more than three months before filing the application for compensation relating to the “house” incident.

Even assuming that the appellant did not find out about victim services until late July 2009, it is not appropriate in the circumstances to grant an extension of time. This is not a case where there is a suggestion that the appellant was legally incompetent or physically or psychologically incapable of filing an application. This is not a case where the appellant acted promptly to file an application as soon as he was informed of his right to appeal. Even if he did not become aware of the right to apply until July 2009, the appellant still delayed for approximately one month before exercising his right. Given the absence of independent corroboration of the “house” incident, this delay only served to increase the challenge of examining the merits of his claim.

Taking into account the circumstances of this specific case, the panel is not aware of any exigent circumstances that would justify exceeding the time limit by approximately four months.

Assessing the Merits of the Application for Compensation

Alternatively, even if an extension of time had been granted, the panel has determined based on a balance of probabilities that the claim should not be accepted.

In making this determination, the panel notes that the delay in filing the application coupled with the absence of corroborating witness statements, police reports and medical reports has raised material challenges in terms of the weight which should be accorded to the appellant's evidence. There is no independent corroboration of the appellant's story from the police, from a hospital or from witnesses who do not have a vested financial interest in the outcome of the matter. Section. 54 of the VBR provides that a claim can be reduced or denied if:

• the event was not reported to law enforcement officials within a reasonable time after it occurred;

• the applicant has not assisted law enforcement authorities to apprehend or prosecute the person causing the injuries;

• the victim's injuries occurred while participating in a criminal offence;

• the victim's conduct contributed to the injury.

The panel is not satisfied that the event was reported to law enforcement officials within a reasonable time limit after it occurred. While the appellant alleges a report to the police was made, no police report could be located by the Program. While human error can occur, the panel takes notice of the fact that the Winnipeg Police have a well established business practice relating to the documenting of incidents, As part of their ordinary practice, one would expect a police report to exist if the contact was made. The panel also observe that while the appellant alleges that he has been the victim of 16 assaults in the past 17 years, a number of the 16 complaints were not the subject of police reports.