The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The claimant is appealing the decision by the Manitoba Compensation for Victims of Crime Program (the "Program") denying his application for compensation under The Victims' Bill of Rights (the "VBR"). A hearing was held on December 13, 2018 to consider the claimant's appeal.

Issue

Whether or not the application for compensation is acceptable.

Decision

That the application for compensation is not acceptable.

Background

On November 11, 2016, the claimant filed an application for compensation under the Program for an incident that took place on August 10, 2016. The claimant stated that he and another player were playing a game together. The other player got upset with the score and pushed the table toward the claimant. The claimant got up and went outside to smoke. The other player came outside while the claimant's back was turned, punched him in the back of the head and went back inside. The claimant then went inside. He went up to the other player and said "don't f*ing ever do that again." The other player did not say anything back. He just stepped on the claimant's foot and pushed him back onto the bar. The claimant asked others to lay him down on the floor. They called an ambulance and he was taken to hospital.

The claimant was diagnosed with a right ankle bimalleolar fracture and surgery was performed.

On January 18, 2017, the Program determined that the claim was not eligible for compensation under subsection 46(1) of the VBR. The Program noted that according to information received by the police from witnesses to the incident, the claimant and the other individual were seen pushing each other. The claimant was seen to trip over a stool and injure his leg. The claimant provided a statement admitting that both parties pushed each other, and the police had noted this to be a mutual fight that escalated. The Program advised the claimant that as the police had indicated that no criminal offence occurred, he was not eligible for compensation with the Program. On March 5, 2017, the claimant requested that the Program reconsider its decision.

On April 12, 2018, the Acting Executive Director of the Program confirmed the decision to deny the application. The claimant was advised that all of the evidence and witness statements provided to the police relating to the incident had been reviewed. The officers handling the case had been contacted and had advised that they had exhausted all avenues to try and contact the witnesses the claimant had recommended. As the incident had been deemed a mutual fight, no charges had been laid and the claimant was not eligible for any benefits from the Program.

On April 23, 2018, the claimant appealed the April 12, 2018 decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation

The claimant is appealing the decision by the Program denying his application for compensation pursuant to subsection 46(1) of the VBR.

Subsection 46(1) of the VBR states, in part, as follows:

Victims

46(1) For the purpose of this Part, a person is a victim if he or she is injured or dies as a result of an incident that occurs in Manitoba 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…

Claimant's Position

The claimant was self-represented. He was accompanied by a friend at the hearing and was provided with the assistance of an interpreter.

The claimant's position was that he was injured as the result of an assault on August 10, 2016 and is entitled to compensation from the Program. In his appeal form dated April 23, 2018, the claimant stated that he had provided the police with the names of two witnesses to the assault, but the police had advised they were unable to contact them. The claimant wrote that when he spoke to these two individuals, they told him they had not heard from the police, and he asked that these witnesses be contacted.

The claimant made a presentation at the hearing, in which he further described the August 10, 2016 incident and medical attention he had received for his foot since then as a result of his injury. The claimant called the two individuals he had previously identified to the police as witnesses at the hearing. The first witness testified by teleconference. The second witness attended the hearing and testified in person. The claimant and the two witnesses responded to questions from the panel.

Analysis

The issue before the panel concerns the acceptability of the claimant's application for compensation. For the appeal to succeed, the panel must find, on a balance of probabilities, that the claimant is eligible to receive compensation pursuant to the VBR. The panel is unable to make that finding.

Based on our review of all of the evidence which is before us, on file and as presented at the hearing, the panel is satisfied that the claimant does not meet the eligibility criteria set out in subsection 46(1) of the VBR and his application for compensation is therefore not acceptable.

Subsection 46(1) requires that a claimant be injured and that the injury be as a result of an incident that is caused by a criminal offence. The panel accepts that the claimant sustained an injury as a result of the events on August 10, 2016. The panel is not satisfied, however, that the injury was as a result of a criminal offence.

The evidence indicates that the August 10, 2016 incident started as a relatively minor argument or confrontation. The claimant stated at the hearing that he was playing a game with the other individual as his partner. His partner was recording points, and the claimant said he told him "don't steal points, I don't need to win the game stealing points." The claimant acknowledged, in response to questions from the panel, that he was concerned that his partner was cheating. His partner got mad and pushed the table against him, against the wall. The claimant said he just pushed the table back, and went outside to smoke, saying that he did not want to play anymore.

The situation escalated from there. The claimant said that while outside, he had just turned his back to the door, and his partner came up behind him and punched him in the back. The claimant said he fell down, then went back inside and told his partner to never do that again. His partner came over to him, stepped on his foot and "just pushed him." After that, he could not put any pressure on his foot, and he asked someone to lay him down and call an ambulance.

The panel has no doubt that the claimant sustained a significant injury. The panel accepts that the claimant's foot was planted, and that when he was pushed, his body went one way and his foot did not follow. The panel finds that the description of how the injury occurred is consistent with how such an injury could occur.

Subsection 46(1) also requires, however, that a criminal offence be committed. The panel finds, on a balance of probabilities, that the evidence does not establish that a Criminal Code offence as specified in the regulations was committed.

The claimant's application for compensation shows that the claim was reported to the police as an assault. Information on file indicates that the information obtained in the police investigation was sent to a Crown Attorney for their opinion, and that this resulted in no charges being laid with respect to this incident.

The panel notes that pursuant to subsection 46(2) of the VBR, it is not necessary that a person be charged with, or convicted of, an offence in respect of the incident that results in an injury or death. The panel must nevertheless still be satisfied, on a balance of probabilities, that an offence has occurred.

The panel can accept that the partner stepped on the claimant's foot and pushed him backwards. The panel is not satisfied, however, that the evidence supports that the partner stepped on the claimant's foot intentionally or that he applied or intended to apply significant force or intended to injure the claimant.

The panel notes that the claimant himself stated at the hearing that he had no idea whether the partner stepped on his foot intentionally or by accident. When the claimant was asked whether he would have just stepped back two steps and been okay if the partner had not been stepping on his foot, or whether he would have fallen anyway, he stated that "For sure, I would be okay if he didn't step on my foot."

The evidence further indicates that no one else witnessed the partner stepping on the claimant's foot. The first witness who testified at the hearing acknowledged that he did not see the partner push the claimant. The second witness's evidence was that the two men were close together, and the witness saw the partner push the claimant on the chest with open hands, after which he looked down and saw the claimant on the floor. He thought the claimant might have fallen, that the claimant went straight to the floor when he was pushed.

The claimant also agreed that the partner pushed him in the middle of his chest with open hands, and said that he was maybe three feet from the bar at the time. Police officer's notes indicate that one of the witnesses they interviewed said that he saw the argument and described what occurred as a "freak accident" and not intentional.

Based on our review of the evidence, the panel finds, on a balance of probabilities, that the force when the partner pushed the claimant was relatively minor, and it was only because the claimant's foot was inadvertently trapped that he sustained such an injury.

The panel further notes, as previously stated, that the evidence indicates this was a relatively minor argument or confrontation that quickly escalated. In the panel's view, this was due in part to the actions of the claimant himself. The claimant indicated that he accused his partner of cheating at the outset. The claimant also indicated, in his original application for compensation, that when he came back into the building after his partner had "punched me in the back of the head", he went up to his partner and confronted him, saying "don't f*ing ever do that again." The panel is therefore also satisfied that the claimant himself indirectly contributed to his injury.

Based on the foregoing, the panel finds, on a balance of probabilities, that the claimant is not eligible to receive compensation pursuant to the VBR. The panel therefore finds that the application for compensation is not acceptable.

The claimant's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, J. Lee

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 6th day of February, 2019