The Appeal CommissionThe Workers Compensation Act of Manitoba

Analysis:

There are two issues before the appeal panel. We will address each separately.

Extension of time for appealing decision

The first question before the panel is whether the time for appeal ought to be extended. Authority for granting an extension of time is found under section 60 of the Bill, as follows:

Right to appeal decision made on reconsideration

60(1) A person who received a notice under subsection 59(4) (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).

At the hearing, it was admitted by the appellant that the appeal was not filed within the 30 day time limit. It was submitted, however, that the statute permits the appeal board to consider any reasonable excuse. In the present case, there was a continuous view that the appellant wanted to appeal. Unfortunately, there were a number of factors which caused delay. First, although the decision is dated January 12, 2010, the appellant's records show that it did not arrive at his home until January 22, 2010. The appellant was on vacation until February 5, so he did not actually read the decision until that date. On February 6, the appellant contacted the Program to advise that he did not receive an appeal form, and requested that one be sent to his legal counsel. It was also noted that legal counsel was not copied with the decision letter and so he did not have any earlier notice of the decision than did the appellant. By February 9, the appeal form was provided to legal counsel; however, he was then away on vacation for one week. Once legal counsel was back in the office, the appeal was promptly filed. It was submitted that once the appellant and his legal counsel had both the decision and appeal form in hand, they moved in a timely manner to file the appeal, and had turned it around in less than 30 days. There was no prejudice to the Program or anyone else resulting from the delay and the appellant had made it known from the outset that he wanted to appeal.

After reviewing all the circumstances, the panel accepts that the delays caused by the slow delivery of the decision, the absence of an appeal form, and the unavailability of the appellant's legal counsel are sufficient to constitute a reasonable excuse for a 14 day delay in filing an appeal, in a context where the appellant had made his intention to appeal known to the Program well before the expiry of the 30 days appeal period. We therefore find that the time for appealing the decision refusing compensation should be extended.

Whether the application for compensation is acceptable

The second issue before the panel concerns acceptability of the appellant's application for compensation. In order for the appeal to succeed, the panel must find on a balance of probabilities that the appellant is eligible for compensation pursuant to subsection 46(1) of the Bill, which provides as follows:

Eligibility for compensation

46(1) An application for compensation may be made, in accordance with this Act and the regulations, to the director in respect of a person who is injured or dies as a result of an event that occurs in Manitoba and that:

(a) Is caused by an act or omission of another person that is an offence under the Criminal Code (Canada) specified in the regulations; or

(b) Occurs while the person does or attempts to do any of the following:

(i) lawfully arrest a person or preserve the peace,

(ii) assist a peace officer in the execution of his or her duty, or

(iii) lawfully prevent the commission of an offence or suspected offence under the Criminal Code (Canada).

In the present case, subsection (b) is not applicable on the facts. Therefore, in order for the appellant to be eligible for compensation, the panel must be satisfied that he was injured as a result of a Criminal Code of Canada ("Criminal Code") offence specified in the regulations.

It was pointed out by the appellant's legal counsel that the Bill does not require that a person be charged with, or convicted of, an offence in respect of the event that results in an injury or death. The panel agrees with this statement, but is also of the view that we must still be satisfied on a balance of probabilities that an offence has occurred.

At the outset, the panel notes that the scope of this appeal is to be defined by the application for compensation which was filed by the appellant. The application specifically states that the appellant felt he was a victim of crime perpetrated by the RCMP and Manitoba Justice. At the reconsideration stage, legal counsel for the appellant asked the Program to consider: "suspicious actions of (the appellant's) family members in dealing with certain firearms which they alleged to have been stored in the marital home by my client. (Court of Queen's Bench) reasons, we believe, establish a breach of s. 86(2) by my client's accusers, resulting in some of the criminal charges he was obliged to defend. Similarly the family members' accusations on the firearms and other matters resulted in his arrest and forcible solitary confinement due to his status as a former (peace officer). In short, his life was in danger as a peace officer being jailed. This caused considerable pain and suffering for my client."

In a reconsideration decision dated January 12, 2010, the Director of the Program declined to consider the involvement of family members as this did not form part of the application for compensation. In the Appeal of Victim Compensation Decision form and at the hearing, the appellant and his legal counsel raised the issue of involvement of family members in committing a crime against the appellant which caused him injury. The panel agrees with the Director that the allegations against family members does not form part of the application for compensation, and in any event, as the Director declined to make a decision regarding the involvement of the family members, the Appeal Commission does not have the jurisdiction to rule on this issue. Our powers are limited to review of a previous decision.

Accordingly, this decision will consider only the offences which were alleged to have been committed by the RCMP and Manitoba Justice.

After reviewing the evidence as a whole, the panel finds that the appellant does not meet the eligibility criteria set out in subsection 46(1) and therefore his application for compensation is not acceptable. Specifically, the panel finds that two major elements of subsection 46(1) are not met.

First, subsection 46(1) requires that a criminal offence be committed. The facts of the case do not establish that a Criminal Code offence as specified in the regulations was committed. The informations laid by the appellant against the peace officers and crown prosecutors deal primarily with unlawful obstruction of justice, which is not a specified offence under the Bill. The only charges listed in the informations which are also specified in the Victim Rights Regulation are two charges of torture under section 269(1) of the Criminal Code and a single charge of assault under section 266 of the Criminal Code.

With respect to the charges of torture, the information states: "… did inflict torture on (the appellant) to wit; causing him mental and physical pain by remanding him in custody at (provincial jail) knowing that evidence was tampered with, contrary to section 269(1) of the Criminal Code of Canada." The panel finds that the act of remanding an accused to custody in the course of employment as a peace officer does not constitute the offence of torture under section 269(1) of the Criminal Code. The criminal offence of torture was not committed.

With respect to the single charge of assault, the information states: "… without lawful excuse did commit an assault on (the appellant) by grabbing him by the arm contrary to section 266 of the Criminal Code of Canada." The information was laid against one of the peace officers responsible for arresting the appellant. The panel finds that the act of grabbing an accused by the arm while performing an arrest in the course of employment as a peace officer does not constitute the offence of assault under section 266 of the Criminal Code. Furthermore, as outlined in more detail later in this decision, the only injury which the appellant claims is psychological injury resulting from his incarceration. He does not claim physical injury resulting from being grabbed by the arm. Therefore, even if the assault did constitute an offence, there is no claim for injury resulting from this physical contact.

It is worthwhile to note that all of the informations were stayed in their entirety and essentially amount to nothing more than allegations against the parties.

At the hearing, it was submitted that the panel should consider the actions of the peace officers and crown prosecutors in the context of section 430(2) of the Criminal Code, committing mischief causing danger to life. This is an offence which is specified in the Victim Rights Regulation. The panel does not accept this argument as a real danger to life has not been demonstrated. The appellant acknowledged that no riot or other disturbance occurred while he was incarcerated and therefore he suffered no real threat to his physical safety. The damage was solely an alleged psychological trauma. We therefore find that the criminal offence of mischief causing danger to life was not committed.

Overall, the panel could find no criminal offence of which the appellant was a victim. Although he was charged with several offences which were ultimately dismissed at trial, the panel is unable to find any criminal intent on the part of the peace officers or crown prosecutors in the performance of their duties. While the appellant raised many points for speculation as to why they did what they did, the panel does not find that any criminal offence was committed by individuals performing prescribed job duties for their occupations as peace officers and prosecutors.