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 her application for compensation under The Victims' Bill of Rights (the "VBR"). A teleconference hearing was held on November 18, 2020 to consider the claimant's appeal.

Issue

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

Whether or not the application for compensation is acceptable.

Decision

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

That the application for compensation is not acceptable.

Background

On July 17, 2019, the claimant filed an application under the Program in respect of an incident which took place on May 11, 2019. The claimant stated that she was assaulted and struck in the face with a metal pipe by two unknown assailants who also attempted to steal her purse. The claimant returned home after the incident but was taken to a local hospital emergency department by her mother.

On June 24, 2019, the claimant reported the incident to the police and provided a statement. On July 3, 2019, the police contacted the claimant for further information regarding the incident, at which time the claimant advised she had not reported the incident sooner because the police had not helped her with previously reported events and she did not feel reporting the matter would change anything. On July 6, 2019, following further investigation, the police file was closed due to lack of evidence.

On October 1, 2019, the Program determined that the application for compensation benefits was denied. The Program referred to section 54(a) of the VBR and noted that while the incident took place on May 11, 2019, the claimant did not report it to the police until June 24, 2019. The Program stated that due to the elapsed time, the police were unable to conduct a proper investigation. It was noted that victims are required under the VBR to assist in the investigation and prosecution of cases and it is therefore essential that incidents be reported as soon as possible. The Program found the claimant did not have a reasonable explanation for the delay in reporting the incident to the police.

On December 15, 2019, the claimant's representative requested that the Director of Victim Services reconsider the Program's decision. The representative noted that the claimant has significant pre-existing mental health issues which made her fearful and unable to report the incident.

On January 28, 2020, the Acting Executive Director of the Program determined that the decision to deny the claimant's application was correct. The Acting Executive Director (the "A/E Director") acknowledged the claimant's explanation as to why the matter had gone unreported to the police, but noted that a time limit is in place under the VBR legislation because "…excessive delays make it impossible for the program to reasonably determine the extent of the original injury…" The A/E Director concluded that as there was a six week delay between the incident and the report to the police, the claimant's application was not eligible for compensation.

On May 25, 2020, the claimant appealed the A/E Director's decision to the Appeal Commission and a teleconference hearing was arranged.

As the file reflected that the A/E Director's decision was issued January 28, 2020 and the application to appeal was completed on May 25, 2020, which was beyond the 30 day limitation period for filing an appeal as prescribed by the VBR, the issue of an extension of time for filing an appeal was also added to the appeal.

Reasons

Applicable Legislation

Compensation for victims of crime is provided for under Part 5 of the VBR.

Subsection 46(1) addresses the meaning of the word "victim" under Part 5 of the VBR, and reads, in part, as follows:

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;…

Section 54 refers to circumstances in which compensation under Part 5 of the VBR may be refused or reduced, and states, in part, as follows:

54 Subject to the regulations, the director may refuse to award compensation under this Part or may reduce the amount of compensation payable under this Part if he or she is of the opinion that 

(a) the incident that resulted in the victim's injury or death was not reported to law enforcement authorities within a reasonable time after it occurred;…

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:

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 represented by her mother, who made a presentation to the panel, and was assisted at the hearing by an occupational therapist who had been working with the claimant. The occupational therapist also provided a letter of support in advance of the appeal and made a presentation to the panel. The claimant did not participate in the appeal.

With respect to the issue of an extension of time for filing an appeal, the claimant's representative disagreed that the appeal was filed late. The claimant's representative acknowledged that the A/E Director's decision is dated January 28. 2020, but stated that it did not appear to have been mailed as it was not received at that time. The representative said that as she had had no communication from Victim Services since filing her request for reconsideration in December 2019, she called the office and left a voicemail message on March 16, 2020 inquiring as to the status of her request.

The representative noted that she subsequently received an envelope postmarked March 25, 2020 enclosing two January 28, 2020 decisions and indicating she had 30 days to appeal. She said the appeal form was not enclosed with that letter, and given the gap in time between the decision date of January 28, 2020 and the postmark date of March 25, 2020, she wrote to Victim Services on April 13, 2020, indicating the appeal form was missing and requesting clarification of the appeal period.

The claimant's representative noted that she subsequently received a letter from Victim Services dated April 24, 2020, which indicated that the appeal period was from the postmarked date of the letter and that they were being flexible with time limits due to the pandemic. The representative noted that the postmarked date on that letter was April 27, 2020, and a copy of the decision with the appeal form was enclosed. The claimant's appeal was submitted on May 25, 2020.

In summary, it was submitted that in light of the various errors which required additional correspondence and clarification before an appeal could be submitted, she did not believe the appeal was filed late.

With respect to the issue of whether the application for compensation is acceptable, the claimant's representative said they disagreed with the decision of the A/E Director and were asking that the application be accepted.

The claimant's representative noted that the application was denied on the basis that the incident was not reported to law enforcement authorities within a reasonable period of time after it occurred. The representative stated that when the claimant came home in a taxi and she saw how she was hurt, she took her to the hospital emergency department early that same morning. The representative noted that subsequent medical appointments and treatments for the different injuries which the claimant sustained as a result of the incident were listed in her application for compensation.

The claimant's representative stated that the claimant struggles with a number of untreated mental health disorders. She submitted that the assault of May 11, 2019 caused the claimant tremendous trauma and immobilizing fear. Her PTSD and anxiety spiked and she largely isolated herself.

The representative submitted that the claimant made her police report at the earliest time she was capable of doing so. She stated that the claimant was never able to speak about the incident in its entirety. The claimant would say little things here and there, which she (her mother) eventually pieced together and put into a report containing "…a chronology of what took place to the best of her ability."

The claimant's representative submitted that it may not be unreasonable for a person who does not have the mental issues the claimant has to make a report to the police within three days of an incident, but there was no way the claimant could have done that. The representative concluded that the claimant:

…did the best she could and I did my best for her in that when she would say some little thing about what happened, I would keep records and then I, when I finally thought I had a good understanding, or as good as I could get, that I could write a small report so that [the claimant] then could go to the police and hand it to them so at least it was a base for them to read and understand what happened and then have whatever conversation beyond that with her.

In her letter of support filed in advance of the hearing and in her presentation at the hearing, the occupational therapist noted that the claimant demonstrates the functional deficits associated with her mental health diagnoses and submitted that in spite of the support provided by her mother, she "would not have been able to advocate for herself to the degree necessary to facilitate a successful interaction with services and completion of the forms required for victim compensation." The occupational therapist submitted that the claimant was not provided with accommodation for her mental disabilities while she was seeking assistance from Victim Services and asked that

…accommodation be offered now and an extension be offered to [the claimant], as well as the recognition of how these challenges would have made it difficult for her to report this crime to the authorities in a timely manner, so she may access victim compensation with the continued support of [the representative] and her mental health recovery and housing team.

Analysis

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

For the appeal on this issue to be successful, the panel must be satisfied that the claimant had a reasonable excuse for failing to appeal within 30 days from the date the A/E Director's decision was received. The panel is able to make that finding.

The panel accepts the representative's evidence that while the A/E Director's decision was dated January 28, 2020, the claimant and her representative did not receive it at that time.

The panel notes that the evidence indicates the representative made inquiries as to the status of her request for reconsideration and the A/E Director's decision in March 2020, and on receiving a response, sought clarification with respect to the decisions provided and the timeline for the filing of an appeal. The evidence indicates that the claimant received the requested clarification, together with a copy of the January 28, 2020 decision and the proper appeal form, by letter postmarked April 27, 2020, and that she submitted her appeal within 30 days after that date.

In the circumstances, the panel is satisfied that the claimant had a reasonable excuse for the delay in filing the appeal.

The panel therefore finds that the time for filing an appeal 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 the provisions of the VBR. The panel is unable to make this finding for the reasons that follow.

The panel accepts that an incident occurred on May 11, 2019 which resulted in injuries to the claimant. Based on our review of all of the information and submissions which are before us, however, the panel is not satisfied that the application for compensation under the VBR arising out of that incident is acceptable.

In arriving at this conclusion, the panel is unable to place much weight on the incident as reported by the claimant and finds, on a balance of probabilities, that there is insufficient evidence to establish that the claimant suffered an injury as a result of an offence under subsection 46(1) of the VBR.

The panel notes in this regard that there are significant differences and inconsistencies in the claimant's descriptions of the incident and surrounding circumstances, as set out in the various reports on file.

The panel further notes that appeal submissions and reports on file indicate they have been prepared by the claimant's representative (her mother) on her behalf and signed by the claimant. The evidence shows that the claimant has never been able to recall or speak of the incident as a whole, and that the accounts of what occurred have been pieced together by her representative over a lengthy period of time, based on bits and pieces of information the claimant provided at different times. In the request for consideration to the A/E Director dated December 15, 2019, the representative thus wrote:

[The claimant] never spoke about the incident it its entirety so it was not possible for me to write a report on her behalf. It was over the period of the 40+ days that I could finally piece together what occurred and write the report [the claimant] read and signed and presented to police.

In response to questions from the panel at the hearing with respect to the incident, the representative candidly indicated that "…I don't know, I still don't know exactly how everything happened" and that:

…by no means was [the claimant] the initiator of the situation. And when she told me when…the little bits she was saying over time, these two guys, it seemed that their intent was to rob them of whatever they had and that's how it all evolved…So, I mean, that's kind of, I believe what happened.

The panel is unable to reconcile the various reports by the claimant or her representative as to what occurred on May 11, 2019.

In addition, the panel notes that there is an absence of evidence to support or substantiate the claimant's reports. The evidence shows that the claimant did not report the May 11, 2019 incident to the police until June 24 2019, being more than six weeks after the incident occurred. The panel is satisfied that this delay in reporting substantially compromised any investigation by the police or by Victim Services.

In this regard, the panel notes that a police report on file indicates that the police contacted the claimant again on July 3, 2019 to obtain further information, and it was noted that the details which were provided at that time were inconsistent with the claimant's June 24, 2019 report. The July 3, 2019 police report indicated that further investigation was conducted and it was determined that surveillance footage at the reported location was no longer available and security at that location had not reported any fights or disturbances like the one the claimant had reported. It was also noted that on further inquiries, no reported incidents in the surrounding area could be found and that canvassing of the area for surveillance video had been met with negative results. The investigator concluded that there was no evidence at that time that would assist with identifying a suspect in this matter and the police file was being closed.

As indicated previously, the claimant did not participate in the hearing, nor was she in the room during the proceedings. Prior to the close of the hearing, the claimant's representative took a moment to go and talk to the claimant again as to whether she would speak with the panel, and returned to advise that the claimant said she had been through enough and that it would be too difficult for her to speak with the panel. The panel was therefore unable to speak with the claimant.

The panel acknowledges the submission of the claimant's occupational therapist and her reference to the claimant's symptoms, including her difficulty functioning and remembering details, as being consistent with her diagnosed mental health conditions. The panel notes that the occupational therapist indicated she did not start working with the claimant until September 2020, or approximately 18 months after the incident.

The panel acknowledges that the claimant has significant mental health issues, and notes that there is no dispute that these were longstanding and pre-existing. While the panel accepts the representative's submission that they have done their best in the circumstances, the panel finds that there is insufficient reliable evidence before us to establish, on a balance of probabilities, that the May 11, 2019 incident took place as reported. The panel is therefore unable to find that the claimant's application for compensation is acceptable.

The panel notes that the Program has offered the claimant funding for counselling. Based on the evidence which is before us, and as indicated above, the panel finds that the claimant is not entitled to any other benefits or compensation other than the counselling which was offered.

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
J. MacKay, Commissioner
S. Briscoe, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 15th day of January, 2021