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"). As the appeal was received past the time period stipulated by subsection 60(1) of the VBR, the additional issue of an extension of time for filing an appeal was added to the claimant's appeal. A hearing was held on April 10, 2019 to consider the claimant's appeal.

Issue

Whether or not the time for filing an appeal for an application for compensation should be extended; and

Whether or not the application for compensation is acceptable.

Decision

That the time for filing an appeal for an application for compensation should be extended; and

That the application for compensation is not acceptable.

Background

On January 29, 2018, the claimant filed an application for compensation under the Program for an incident that took place on January 21, 2018. The claimant stated that he was assaulted with a weapon by several people he did not know. A passerby found the claimant and called an ambulance, after which he was taken to hospital.

On February 6, 2018, the Program determined that the claim was not eligible for compensation under subsection 54.1(4) of the VBR. The Program noted that a review of the Manitoba court records indicated the claimant had been convicted of six offences within the past five years. On March 13, 2018, the claimant submitted that he did not have a criminal record and requested that the Program reconsider its decision.

On March 21, 2018, the Acting Executive Director of the Program confirmed the decision to deny the claimant's application. The Acting Executive Director noted that subsections 16.2(1) and (2) of the Victim's Rights Regulation (the "Regulation") stated that the director may reduce the compensation payable to a victim under subsection 54.1(4) of the VBR by 100% if the victim was convicted of five or more non-prescribed offences within the five-year period before the incident or any five-year period around the time of the incident. The Acting Executive Director found that court records indicated the claimant had been convicted of six non-prescribed offences within the past five years, and as a result, he was not eligible for compensation.

On November 7, 2018, the claimant appealed the 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 54.1(4) of the VBR.

Part 5 of the VBR addresses the subject of compensation for victims of crime. Sections 54 and 54.1 in Part 5 deal with circumstances where the director may reduce or refuse to award compensation. Subsection 54.1(4) states as follows:

Denial or reduction of compensation due to conviction for non-prescribed offences 

54.1(4) The director may, in accordance with the regulations, deny or reduce the amount of compensation payable under this Part if the victim was convicted of one or more offences under the Criminal Code (Canada) or the Controlled Drugs and Substances Act (Canada) - other than a prescribed offence - within the five-year period before the incident that resulted in the victim's injury or death or at any time after the incident.

Sections 16.1 to 16.4 of the Regulation deal with the denial, reduction or termination of compensation due to unlawful conduct by the victim. Section 16.2 provides, in part, as follows:

Reduction of compensation for recent convictions 

16.2(1) The director may reduce compensation under subsection 54.1(4) of the Act in accordance with this section if the victim was convicted of two or more non-prescribed offences within the five-year period before the incident that resulted in the victim's injury or death or any five-year period around the time of the incident or any five-year period after the incident.

Reduction of compensation 

16.2(2) The amount of compensation payable under this Part may be reduced by the following percentages: 

… 

(d) 100% if the victim was convicted of five or more non-prescribed offences described in subsection (1) within the five-year period before the incident in question or any five-year period around the time of the incident or any five-year period after the incident.

Subsection 60(1) of the VBR provides that a person who receives written notice of a reconsideration decision under subsection 59(4) of the VBR "may appeal the decision to the appeal board within 30 days after receiving the notice." Authority for granting an extension of time to file an appeal is found in subsection 60(2) of the VBR, which reads as follows:

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).

Claimant's Position

The claimant was self-represented on the appeal. The claimant attended the hearing and explained his position. The claimant also responded to questions from the panel.

The claimant described in detail the incident that took place in January 2018. The claimant referred to a witness, who he said was a friend he just met on the street, but indicated that he did not know the witness's real name or where she lived.

The claimant's position on the appeal was that he does not have a criminal record. In a written submission provided in advance of the appeal, he noted that his claim for compensation was denied "because I have a record to Justice, but my record is not a criminal…" He further noted that people had stolen his identity and used it. He said that he has been homeless for two years and the Program's decision to deny him compensation was not fair.

Analysis

Issue 1. Whether or not the time for filing an appeal for an application for compensation should be extended.

As indicated previously, given that the appeal was not received within the time period referred to in subsection 60(1) of the VBR, this issue of an extension of time for filing an appeal was added to the claimant's appeal.

Subsection 60(1) of the VBR provides that a person who receives written notice of a reconsideration decision under subsection 59(4) of the VBR "may appeal the decision to the appeal board within 30 days after receiving the notice." Under subsection 60(2) of the VBR, an extension of time to file an appeal may be granted if the appeal panel is satisfied that the person appealing has a reasonable excuse for failing to appeal within the specified time period.

In this instance, there is no dispute that the application to appeal was received by the Appeal Commission well beyond the 30 day time referred to in subsection 60(1) of the VBR. The decision of the Acting Executive Director of the Program denying compensation to the claimant was delivered March 21, 2018. The claimant filed his appeal from that decision with the Appeal Commission on November 7, 2018.

The panel is nevertheless satisfied, in the circumstances of this case, that the delay in filing the appeal was reasonable. The panel notes that the information on file and as presented at the hearing indicates that the claimant intended to appeal the decision throughout. The panel is satisfied that the claimant was unclear as to the appropriate process to follow, but that he was actively making efforts to pursue reconsideration or an appeal through various venues.

Among other things, the panel accepts the claimant's evidence at the hearing that he was in contact with and made inquiries of the Program following receipt of the March 21, 2018 decision, and indicated he would be seeking a criminal record check from the police. The panel notes that information on file includes a further Request for Reconsideration, dated May 29, 2018 and stamped as having been received May 31, 2018, in which the claimant noted that he was requesting further reconsideration by the Program on the basis, in part, that he did not have a criminal record. The claimant indicated at the hearing that he did not receive any response from the Program to that Request.

The available information further shows that the claimant applied to the police service for a criminal record search to support his position that he did not have a criminal record. Correspondence on file shows that he was subsequently advised that due to a discrepancy in the declaration he provided, he would have to attend at police headquarters to obtain and pay for a full set of fingerprints. The claimant agreed at the hearing that he was told he needed to get the fingerprints done, but that he had to pay more money to do so. He said he would have obtained the fingerprints if he could have done so, but was homeless and did not have the money.

Based on the information which is before us, and in the circumstances of this case, the panel is satisfied that the claimant had a reasonable excuse for failing to appeal within the time referred to in subsection 60(1) of the VBR.

The panel therefore finds that the time for filing an appeal for an application for compensation should be extended.

Issue 2. Whether or not the application for compensation is acceptable.

For the appeal on this issue to be successful, the panel must find that the claimant is or should be entitled to compensation under Part 5 of the VBR. The panel is unable to make that finding.

The panel accepts that the claimant was the victim of an assault on January 21, 2018.

The Program, and the appeal panel on an appeal from a decision by the Program, have the discretion to deny or reduce the amount of compensation which would be payable under the Part 5 of the VBR if the victim was convicted of a non-prescribed offence or offences under the Criminal Code (Canada) within the five-year period before the incident that resulted in the victim's injury.

A search of the Manitoba court records relating to the claimant, which is on the file, shows that he has six convictions for offences to which he plead guilty, with the last appearance in each instance being January 19, 2018. The panel notes that these offences fall within the scope of subsection 54.1(4) of the VBR as non-prescribed offences, being offences under the Criminal Code (Canada) other than prescribed offences as listed in the regulations.

While the claimant maintained that he did not have a "criminal record," he acknowledged at the hearing that he pleaded guilty to each of the charges listed on the court records search and was convicted of those offences. In response to questions from the panel relating to those convictions, the claimant indicated that the theft he was charged with was not committed by him, but was committed by the people who stole his identity, and that he had missed some court dates because he was homeless. He acknowledged that he attended in court, that he was charged with the offences and that he pleaded guilty to them, but said that he pleaded guilty because his lawyer told him to do so. The fact remains, however, that he pleaded guilty and was convicted of six non-prescribed offences within the five-year period prior to the assault or incident.

Subsections 16.2(2)(d) of the Regulation provides that the amount of compensation may be reduced by 100% if the victim was convicted of five or more non-prescribed offences within the five-year period before the incident in question. The decision as to whether compensation should be reduced is a discretionary one. In this case, the panel is unable to identify any reasonable explanation as to why it ought not to exercise its discretion to reduce compensation by 100%. The panel is satisfied that the claimant's situation falls squarely within the exception to compensation as the result of recent convictions under the VBR. In the circumstances, and given the claimant's six recent convictions for non-prescribed offences and his guilty plea to each of those convictions, the panel is satisfied that it is appropriate to exercise our discretion to reduce any compensation payable by 100%.

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
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 7th day of June, 2019