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 their application for compensation under The Victims' Bill of Rights (the "VBR"). A hearing was held on March 8, 2023 to consider the claimant's appeal.

Issue

Whether or not the application for compensation is acceptable.

Decision

The application for compensation is acceptable.

Background

The claimant filed an application for compensation under the Program on March 30, 2022 for an incident that took place on March 2, 2022 in which the claimant was assaulted and robbed. After the incident the claimant made their way to a local business where emergency services were called and the claimant was taken to the hospital by ambulance.

On April 19, 2022, the Program determined that the claim was not eligible for compensation under s 54(b) of the VBR on the basis the claimant was not fully cooperating "…in the apprehension and prosecution of an accused person through the provision of information or evidence and/or witness statements and by providing testimony in court."

The claimant submitted a Request for Reconsideration to the Program on May 1, 2022, noting that when they were interviewed regarding the incident, initially they were intoxicated and in shock due to the incident and the second time they were interviewed at the hospital, they were heavily medicated due to their injuries and did their best to provide details of the incident.

On September 27, 2022, the Director of the Program confirmed the prior decision to deny the claimant's application noting the claimant had been provided with the opportunity to contact the authorities and provide further details; however, had not done so. Further, it was noted the claimant had "…provided multiple and differing versions of events which make it difficult to determine what actually happened during the criminal incident."

The claimant appealed the decision to the Appeal Commission on October 18, 2022 and a hearing was arranged.

Reasons

Applicable Legislation

The panel is bound to apply the provisions of The Victims’ Bill of Rights and the regulations under that Act. The question for determination is whether the claimant’s application for compensation under the provisions of the VBR is acceptable. The VBR provides in s 46(1) that for purposes of determining compensation, a person is a victim if he or she is injured or dies as a result of an incident that occurs in Manitoba that is caused by an act or omission of another person that is an offence under the Criminal Code (Canada) as specified in the regulations.

Section 47 of the VBR provides that a victim who is injured as a result of such an incident is entitled to reimbursement for expenses prescribed in the regulation that were incurred as a result of the injury, compensation for related counselling services, compensation for loss of wages if the victim is disabled by the injury and compensation for impairment if the victim is permanently impaired by the injury.

Section 54 of the VBR provides that the Director may refuse to award compensation or may reduce the amount of compensation payable if 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; 

(b) the applicant has not assisted law enforcement authorities to apprehend or prosecute a person whose actions resulted in the victim’s injury or death; 

(c) the victim’s injuries or death occurred while participating in a criminal offence; 

(d) the victim’s conduct directly or indirectly contributed to the victim’s injury or death; or 

(e) the applicant has not provided information requested by the director, or in the form requested by the director, within a reasonable time after the request was made.

The Victims’ Rights Regulation, Manitoba Regulation 214/98 (the “Regulation”) provides in s 4 that for the purpose of s 46(1)(a) of the VBR, an application for compensation may be made in respect of the offences under the Criminal Code (Canada) listed in Schedule A to the Regulation.

Claimant’s Position

The claimant appeared before the appeal panel on their own behalf and outlined to the panel why they believe their appeal should be granted. The claimant also provided testimony through answers to questions posed by the members of the appeal panel.

The claimant’s position is that they should be eligible for compensation under the VBR as they were injured as a result of a criminal assault that took place on March 2, 2022 in Winnipeg, Manitoba.

The claimant stated that they work as a driver and have done so for some 25 years, with a clean record. The claimant told the panel that in the job they were in at the time of this incident, they would typically stay in hotels between trips and that’s what they were doing at the time of the assault. The claimant noted that the lodging where the assault took place offered long term rentals at a reasonable price and they had just arrived there on March 1, 2022 intending to keep the room for one month.

The worker described having drinks and playing the video lottery (VLT) machines in the hotel bar that evening before returning to their room to sleep. They recalled waking when someone smashed them in the head with an object which resulted in a broken orbital bone. The claimant stated that the person who hit them left the room with their wallet and phone and car keys, and returned awhile later with another individual. In the meantime, the claimant had quickly dressed, putting on their boots and jacket, planning to get out of there, but then two people returned to the room, dragged the claimant down the hall and threw the claimant out onto the fire escape.

The claimant described sliding down the metal stairs of the fire escape, from the second floor and jumping a short distance into the snow below, before running away from the hotel to try to find help. The claimant said they ended up going into an open store in the area and that someone from the store called police.

The claimant stated that they recalled speaking with police at the hospital a few days later, but did not recall many details as they were receiving morphine for pain relief at that time. On questioning by members of the appeal panel, the claimant recalled feeling frustrated and aggravated by the questioning. The claimant said they remained in hospital until March 6, 2022, and went to their mother’s home after being discharged. The claimant confirmed that they did not have any criminal record or previous court experience.

The claimant stated that they believe their car was taken by the assailants, along with the clothing in the car. The claimant stated that they now require a dental bridge to repair the damage from the injuries sustained in the assault and are seeking compensation for the necessary dental work. The claimant stated that their remaining belongings and the prepaid balance at the hotel were picked up by the claimant’s mother later, after these events took place.

On questioning by the panel members, the claimant recalled being at the same hospital on March 1, 2022 for treatment of an injury to their left foot. The claimant stated they did not receive any pain relief medication for that injury but did receive some cream for wound care. The claimant stated that they “probably had four or five” drinks on the night of March 2, 2022, explaining “I don’t know. I can’t lie to you. If you’re just going to have one, why even go to the bar?” When asked about the medical reporting of road rash, the claimant explained that they believed this was from the carpet at the hotel. The claimant told the panel that they did not recall being evicted from the hotel premises earlier in the day of the incident.

In sum, the claimant’s position is that their application should be accepted as they were a victim of a crime and were injured as a result.

Analysis

The issue before the panel is whether the application for compensation is acceptable. For the claimant's appeal to succeed, the panel must find, on a balance of probabilities, that the claimant was injured as a result of an incident in Manitoba caused by another person that is a specified offence under the Criminal Code (Canada). As detailed in the reasons that follow, the panel was able to make such findings and therefore the claimant’s appeal is granted.

The panel noted that the evidence confirms the claimant applied for compensation under the VBR just 28 days after the incident took place. Although it appears that no charges have been laid in respect of this matter, that is not a requirement under the VBR, and in this case, the police reporting references the reported occurrence as “Assault” and “Robbery”, both of which are offences specified in Schedule A to the Regulation.

In the claimant’s testimony to the panel, they described a chronology of the events of March 2, 2022 that is consistent with the claimant’s report in the Emergency Room on March 2, 2022 and with their report to the police of March 5, 2022. The panel also noted that the claimant’s written statement provided to the police later on March 5, 2022 outlines the same basic chronology. The claimant reported to police that they sustained injuries including two upper front teeth knocked out, fractured left-side orbital bone, broken nose, two black eyes, cut above their left eye, bumps all over their head, 4 cracked ribs and “road rash” on both buttocks. The extent of the claimant’s injuries is confirmed by the medical records in the file evidence.

The panel is satisfied that the evidence confirms the claimant meets the definition of “victim” under the VBR, as they were injured as a result of an incident that occurred in Manitoba caused by an act or omission of another person that is an offence under the Criminal Code (Canada) as specified in the regulations, in this case, a physical assault upon the claimant. While there are some discrepancies between the claimant’s reports of this incident and the later investigatory findings, there is no evidence of any other explanation for the claimant’s injuries and the panel is satisfied on the basis of the evidence before us that the claimant’s injuries were sustained as a result of an assault.

The panel noted that it was on the initial contact with the investigating officers on March 5, 2022 at 10:11, the officer’s recorded that the claimant “was still fair intox” and when asked if they would “like to proceed/cooperate further with the investigation when released [the claimant] did not appear overly interested in providing a statement or testifying in court” and was provided with an incident number and told to call police on release from hospital if they wished to proceed. However, later the same day, the police narrative report of March 5, 2022 at 19:49 indicated that the claimant was “sober and cooperative” although “difficult to keep on topic and this unit had to steer [them] back to the conversation several times. [The claimant] admitted that [they were] on pain killers due to [their] injuries.” Further, the panel noted that the claimant had by the time of the second conversation on March 5, 2022, already provided police with a written statement, which was taken between 18:07 and 18:58.

The director of the Program denied this claim on the basis of s 54(b) of the VBR, which permits the refusal of compensation on the basis that the claimant failed to assist with the investigation; however, the panel does not agree that the evidence supports that determination. Rather, the evidence confirms that the claimant provided information initially to ambulance personnel and hospital staff as to how they sustained their injuries. The evidence further indicates that the claimant was cooperative with police when they attended to question the claimant in hospital on March 5, 2022 and provided a written statement to the police on the same day. While, on subsequent investigation, it appears that the police determined that there was no corroborating evidence to support the claimant’s version of events, the panel does not interpret this to mean that the claimant was not assaulted. It is not surprising that there was no one at the site of the reported incident who admitted to seeing it occur given the report that this occurred in a private room, and further it is not likely that the perpetrator(s) would confirm their involvement to the police if asked. The panel also noted that police summary report dated March 7, 2022 set out that the claimant “did not appear to want further police involvement and stated [they were] not interested in attending court if a person was located and arrested” but the evidence in fact indicates that this comment was noted early in the day on March 5, 2022 and that later the same day, the claimant provided further information and a written statement to police. As such, an evidentiary basis for this summary comment two days later is not established.

The panel also noted that this same summary report contained the conclusion that “at this time all information provided is deemed unreliable based on the fact that hotel staff did not see anything, there was no disturbance to the snow beneath the fire escape, the claimant was deemed to be “highly intoxicated” after the assault, the claimant’s suite was empty and damaged, the injuries included “road rash” and the claimant’s vehicle was nearby although not where the claimant stated they left it. The report concludes with the statement “Based on all this information it is not possible to follow-up further and therefor (sic) I will be suspending this investigation until information/evidence is disclosed to where the assault actually occurred, when it occurred, and by who.” The panel does not agree with the director of the Program that suspension of the investigation indicates that the claimant “has not assisted law enforcement authorities to apprehend or prosecute a person whose actions resulted in the victim’s injury or death” but rather, indicates a need for further information for the investigation to progress further. 

Absent any other evidence, the panel accepts the details of the incident provided by the claimant, whom we note has not waivered in their description of events from the time of initial reporting to medical personnel through their reports to police and the Program, and in their testimony before the appeal panel. As such, we do not find that the claimant is disentitled from compensation on the basis of s 54(b) of the VBR.

On the basis of the totality of the evidence before the panel and on the standard of a balance of probabilities, we are satisfied that the claimant sustained significant injuries as a result of an assault on March 2, 2022, and as such, they are a victim of a crime and entitled to compensation under the provisions of the VBR. Therefore, the application for compensation is acceptable. The claimant’s appeal is granted.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 14th day of April, 2023