Decision #02/11 - Type: Victims' Rights
Preamble
A hearing was held at the Appeal Commission on February 17, 2011 to consider the issue as described below.
Issue
Whether or not the time for making an application for compensation should be extended.
Decision
That the time for making an application for compensation should not be extended.
Decision: Unanimous
Background
The applicant filed a claim with the Compensation for Victims of Crime Program (hereafter the “Program”), on December 8, 2008, for an assault that took place on June 29, 2000.
On December 11, 2008, the Program confirmed to the applicant that it received his recent application for compensation but noted that the applicant had already applied to the Program for the same incident in 2004. The Program denied the 2004 claim at that time as the application was not filed within the legislated one year time limit. It also stated that the applicant had been given 60 days to file a request for reconsideration but it also was never received by the Program. The applicant was advised that his recent application for compensation must also be denied on the same grounds as it was made outside of the legislated time period.
The applicant requested reconsideration of the above decision on October 23, 2009. The applicant indicated that neither he nor his lawyer were aware of the Program’s decision.
On November 2, 2009, the Program advised the applicant that after review of his file, the original decision was correct, in that it did not meet the criteria set out in subsection 51(1) or 51(2) of The Victims’ Bill of Rights (hereafter the “Bill”) as the incident occurred on June 29, 2000 and an application for compensation was not received until December 8, 2004. Also, the applicant’s situation was not a situation where an extension of time was appropriate. The applicant disagreed with the decision and an appeal was filed with the Appeal Commission.
Reasons
Appellant's Position
The appellant attended the hearing with a friend. He explained his position to the panel. He also answered questions posed by the panel.
The appellant advised that he had two reasons for not making an application. He said that he was not aware the program existed and secondly that he had suffered a serious head injury as a result of the assault. He noted that he now has three plates in his head, had a portion of his brain removed, suffers from memory loss and has seizures. He explained that he was in the hospital for more than one month and that it took three years for him to remember details of the assault. He stated that he is now "totally different."
The worker advised that he learned about the program from a friend's mother and that she assisted him with the paperwork for the application. He also received help from a friend. The worker advised that he lives with his mother.
The worker provided information on his medical treatments arising from the assault and information on his current medical issues and symptoms. He also advised that he suffers from HDD (ADHD).
The appellant's friend noted that the worker has changed as a result of the injury. He stated that he is not the "same guy". He also noted that there is no ad campaign informing people about the program.
Analysis
Issue: Whether or not the time for making an application for compensation should be extended.
The appellant's position on this issue is that he was not aware of the program. He also said that he suffered a significant head injury as a result of the assault which affected his ability to apply to the program.
In considering the request for extension of time to file an application, the panel must apply subsections 51(1) and 51(2) of the Bill.
Authority for granting an extension of time is found under the current legislation. Subsection 51(2) of the Bill provides:
"Extension of time
51(2) The director may, before or after the expiry of the one year period, extend the time for making an application if he or she considers it appropriate."
The program has developed a policy which sets out practices and procedures for granting an extension of time. Factors which may support the granting of an extension include cases where the applicant was a minor or mentally incompetent, or where the applicant was medically or psychologically incapable. In the latter case where the applicant is medically/psychologically incapacitated, the extension is generally limited to an extension of up to 30 days. In such a case, the appellant must provide medical documentation, acceptable to the program, to support the applicant's reasons for the delay in making an application.
The policy specifically addresses the issue of lack of awareness and provides:
"Lack of awareness
An extension will not be granted based solely on the fact that the applicant was unaware of the program."
In fulfilling the role as the Compensation Appeal Board under the Bill, the panel follows the practice that decisions are to be made in accordance with both the Bill and with program policy. It is open to the panel to interpret provisions of both the Bill and policy.
Although subsection 51(2) allows the panel to grant an extension of time where the panel considers it appropriate, the panel is of the view that this should be done in rare cases, where there are very compelling reasons and/or supportive medical documentation to do so.
In the present case, the appellant advised the panel that he had two reasons for not applying. He said that his first reason for not applying was that he did not know about the program.
Unfortunately, the Program policy specifically provides that an extension will not be granted based solely on the fact that the appellant was unaware of the Program. The panel is not able to extend the time for making an application on the basis of the appellant's lack of knowledge of the existence of the program.
The appellant provided a second reason for not applying within the time period. He advised the panel that he got jumped and almost died. He said that he had three plates inserted in his head, had a portion of his brain removed and suffers from memory loss. He also noted that it took a long time to recover.
While the panel noted that at the hearing, the appellant, appeared at times to be confused and to have difficulty remembering details, it was not able to find, on a balance of probabilities, that the appellant was mentally incompetent to the extent that he was unable to file an appeal within the prescribed period. In reaching this decision, the panel notes that the appellant was able to attend at the hearing and provide a clear explanation of the reasons for his delay and the process that he followed. As well the panel notes that the appellant had involvement with the legal authorities after the assault, which demonstrates an ability to understand and deal with significant legal matters. The panel finds that the available medical information does not support a finding that the appellant was medically or psychologically incapable of making an application within the required time.
The panel is not able to find a provision of the policy which permits an extension of time for making an application in these circumstances. Accordingly, the appeal on this issue is denied.
Panel Members
A. Scramstad, CommissionerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 25th day of March, 2011