Decision #03/21 - Type: Victims' Rights

Preamble

The claimant is appealing the decision by the Manitoba Compensation for Victims of Crime Program (the "Program") that the deceased victim's son is not entitled to child benefits under the Program. A hearing was held on January 21, 2020 to consider the claimant's appeal.

Issue

Whether or not in addition to counselling, there is entitlement to child benefits.

Decision

That there is no entitlement to child benefits.

Background

On April 7, 2019, the claimant's representative filed an application on behalf of her minor son for child benefits under the Program due to the death of his father on March 17, 2019 as the result of a criminal incident. On May 17, 2019, the Program advised the claimant's representative that the application for compensation was approved for grief counselling services, but there was no entitlement to child benefits as the deceased was not employed and was receiving employment and income assistance at the time of his death.

On June 17, 2019, the claimant's representative requested that the Director of Victim Services reconsider the Program's decision. The claimant's representative noted the deceased had always been employed when work was available to him and provided a copy of a bank statement showing a payroll deposit into her account by the deceased to help support his son.

On July 3, 2019, the Director of the Program determined that the claimant would not be eligible for child benefits as information showed the deceased was not employed at the time of the eligible criminal incident and was receiving employment and income assistance benefits. The Director noted that the legislation was specific in that a victim must be employed and cannot be receiving benefits through another government program at the time of the criminal incident.

On July 20, 2019, the claimant appealed the Director's decision to the Appeal Commission and a hearing was arranged.

Following the hearing, the appeal panel requested additional information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On December 21, 2020, the appeal panel met further to discuss the case and render its decision on the issue under appeal.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by The Victims' Bill of Rights (the "VBR") and regulations made under the VBR.

The VBR creates a mechanism for victims of crime and others to apply for compensation under the Program for injuries resulting from the commission of an offence.

Subsection 48(1) of the VBR provides for compensation to family members of deceased victims, and reads as follows:

48(1) If a victim dies as a result of an incident described in subsection 46(1), the spouse or common-law partner of the victim and a parent, child or sibling of the victim are entitled, in accordance with the regulations, to

(a) reimbursement for expenses prescribed by regulation that were incurred as a result of the death; and

(b) compensation for related counselling services.

Subsection 48(2) provides for additional compensation to dependants, as follows:

48(2) In addition to the compensation provided under subsection (1),

(a) if the deceased victim had a spouse or common-law partner who was, in whole or in part, dependent on the income of the victim at the time of the victim's death, he or she is entitled, in accordance with the regulations, to compensation for loss of the victim's wages; or

(b) if the deceased victim did not have a spouse or common-law partner, any other dependant of the victim is entitled, in accordance with the regulations, to compensation for loss of the victim's wages in the form of a monthly payment.

Sections 13 and 14 of the Victims' Rights Regulation (the "Regulation") address compensation to family members of a deceased victim with respect to loss of wages. Subsection 14(1) of the Victims' Rights Regulation (the "Regulation") addresses compensation to children of a victim who was employed, and states as follows:

14(1) If a victim who died in an incident was employed or self-employed at the time of the incident and had no spouse or common-law partner at that time, each child of the victim who is under 18 years of age is entitled to $270 per month until he or she reaches 18, unless there are more than four children under 18, in which case each child is entitled to a pro rata share of $1,080 each month.

Claimant's Position

The claimant's representative attended the hearing and made a presentation to the panel. The representative stated that she believed her son was entitled to have support, even after his dad passed away.

The representative said she had known the deceased for 20 years, and always knew him to be hard-working, regardless of the circumstances in his life. She said he always did his best to find work when he was able to and when work was available, and he never refused work. She said she knew he had worked for a couple of companies, including a construction company, and that he would go to temp agencies first thing in the morning to get work.

The representative said that there were times when the deceased didn’t have money to offer them, but when he was working or had funds, he always supported his son. The representative noted that she had provided a copy of her December bank statement to the Program, showing that the deceased had deposited the full amount of his paycheque in her account just a few months before he was killed. She said the deceased was always supporting his son, with whatever he could contribute to him.

The representative said she had tried to get information as to where the deceased had been employed, but had not been able to do so. She referred to an organization which had been a great resource in helping him find work, and said she had tried to get information from them as to where he had been employed over the years, but they were unable to provide it to her. She said she was surprised when she was told he was on employment and income assistance. She said she believes he was working for a construction company, but he could have been laid off because of the season or a lack of work.

The representative noted that her son has had to deal with a lot, and is an amazing young man. He works hard, has a big heart and is saddened that he did not have more time with his dad.

In conclusion, the representative said that anything the deceased could have earned for her son is now gone, and she feels that as with any child, her son deserves to have all the opportunities he can from both of his parents.

Analysis

The issue before the panel is whether or not in addition to counselling, there is entitlement to child benefits. For the appeal to be successful, the panel must find that the claimant's application for wage loss or child benefits satisfies the requirements of the VBR and the Regulation. For the reasons that follow, the panel is unable to make that finding.

Paragraph 48(2)(b) of the VBR provides that a dependant of the deceased is entitled to compensation for loss of the victim's wages in the form of a monthly payment in accordance with the regulations. Subsection 14(1) of the Regulation deals with loss of wages compensation to children of an employed victim, and provides that "If a victim who died in an incident was employed or self-employed at the time of the incident…each child of the victim who is under 18 years of age is entitled to $270 per month until he or she reaches 18…"

The panel finds that the language of subsection 14(1) is very clear, and requires that the victim must have been employed or self-employed at the time of the incident for such benefits to be payable.

In this case, information on the claimant's file indicated that the deceased was not employed at the time of his death and that he was receiving employment and insurance benefits. At the hearing, the claimant's representative indicated she believed the deceased had been working and was surprised when she was told he was on employment and insurance benefits. She indicated she had tried to obtain information regarding the deceased's work history, but had not been able to do so.

Following the hearing, the panel made further inquiries in an effort to obtain additional information with respect to the deceased's employment status, but was unable to obtain anything which would indicate the deceased was employed at the time of his death.

Based on the available information, the panel is unable to establish that the deceased was working at the time of the criminal incident. The panel therefore finds that the claimant's application for wage loss or child benefits does not satisfy the requirements of the VBR and the Regulation, and there is no entitlement to child benefits.

The claimant's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 12th day of February, 2021

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