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") that the time for filing an appeal should not be extended and their application for compensation under The Victims' Bill of Rights (the "VBR") was not acceptable. A hearing was held on November 17, 2022 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

The time for filing an appeal should be extended; and

The application for compensation is acceptable.

Background

On October 27, 2018, the claimant filed an application for compensation under the Program for incidents that occurred between 1994 and 2012. On December 19, 2018, the Program determined that the claim was not eligible for compensation under s 51(1) of the VBR as the incidents occurred more than six years earlier and as such were outside the one year time limit for making a claim as required by the VBR.

On May 13, 2021, the claimant submitted a Request for Reconsideration noting that since the incidents, they suffered from “severe complex PTSD (post-traumatic stress disorder)” and required hospitalization and treatment. The Executive Director of the Program confirmed the decision to deny the claimant's application on May 26, 2021. In their decision, the Executive Director noted “…excessive delays make it impossible for the program to reasonably determine the extent of the original injury” and further noted almost eight years had passed since the incident, exceeding the one year time limit in the VBR.

On July 19, 2021, the claimant appealed the decision to the Appeal Commission and a hearing was arranged. Following the hearing, the appeal panel requested additional medical information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On June 14, 2023, the appeal panel met further to discuss the case and render its final decision on the issues under appeal.

Reasons

Applicable Legislation

The panel is bound to apply the provisions of The Victims’ Bill of Rights and the regulations under that Act. 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 46(2) outlines that a criminal charge against or conviction of a person who commits such an act or omission is not required.

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.

The VBR requires, in s 51, that an application for compensation must be made within one year after the date of the incident that results in the victim’s injury or within one year after the date when the victim becomes aware of or knows or ought to know the nature of the injuries and recognizes the effects of the injuries. The VBR also allows an extension of the time to bring an application under s 51 where it is appropriate to do so. Section 52(1) of the VBR requires that on receipt of an application for compensation, the director must determine whether compensation is payable and if so, in what amount.

Section 60(1) allows a person to appeal a reconsideration decision made under s 59(4) within 30 days after receiving the notice, and s 60(2) permits the appeal board to “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).”

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 was accompanied and assisted in the hearing by a friend.

The claimant’s position is that the time for filing an appeal should be extended as they were in the process of moving when the reconsideration decision of the Program Director was provided and therefore did not receive the letter until the day before the appeal form was signed being July 19, 2021. The claimant was also disabled as a result of a surgery for a period of 10 weeks during the same period.

The claimant’s position with respect to the acceptability of their application for compensation is that the application should be accepted as they made application soon after becoming aware through therapy of the criminal nature and effect of their former spouse’s assaults upon them.

The claimant described to the hearing panel that they became aware of the nature and effect of the actions of their former spouse while in the course of a residential therapeutic program in 2018. The claimant noted that it was during their participation in this program that they made their initial police report. The claimant was unable to recall when and from whom they first learned of the possibility of seeking compensation from a victims of crime program.

The claimant also noted in their November 8, 2020 Request for Reconsideration by the Program Director that the “Crown took a lengthy time” in the prosecution and that the claimant’s diagnosis of complex PTSD “required immediate attention so that I could deal with the charges.” The claimant noted that their PTSD “kept me in a very dark place” until after several admissions for residential treatment, they “got the courage to finally report these crimes.”

The claimant confirmed that they moved from the location where they lived at the time of their application to the Program to another location during the summer of 2021, either in July or August and moved again from that location to another location in February of 2022. The claimant also described that during the summer of 2021 they had a surgery on their foot and were off their feet for 10 weeks and taking “…a lot of painkiller treatment.”

The claimant noted that they struggle with memory as a result of and related to their diagnosis of post traumatic stress disorder (“PTSD”) as well as due to head injuries and medication use.

Analysis

The questions for the panel to determine are whether the time for filing an appeal should be extended and 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 has provided a reasonable excuse for failing to appeal within 30 days of receipt of notice of the reconsideration decision, as required by the VBR, and further, that the claimant is eligible for benefits under the provisions of the VBR. As detailed in the reasons that follow, the panel was able to make such findings and therefore the claimant’s appeal is granted.

Should the time for filing an appeal be extended? 

The panel considered whether the time for filing an appeal should be extended in the circumstances as outlined by the claimant in the hearing and as supported by the evidence within the claim file. The VBR permits extension of the 30-day period in which to file an appeal where the person appealing has a reasonable excuse for failing to appeal within that time frame.

The claimant indicated that they did not receive the May 26, 2021 reconsideration decision until July 18, 2021, noting that they moved from one community to another during this time. The panel noted that the letter to the claimant is addressed to an address in a different community than the address noted by the claimant in their Appeal of Victim Compensation Decision form, which was signed by the claimant on July 19, 2021.

The panel also noted however that the Appeal form was not received by the Appeal Commission until September 13, 2021, some 57 days after the claimant stated they received the notice of reconsideration, which is 27 days after the appeal deadline. The claimant also testified in the hearing that they were recovering from a foot surgery that took place that summer and as a result, were off their feet for a period of 10 weeks and during that time, were prescribed what the claimant described to that panel as “a lot of painkillers”, in addition to the other medications the claimant relies upon related to their psychological diagnoses. The panel also took note that the medical information on file confirms that the claimant underwent a foot surgery in 2021 and that they experience memory deficits due to their prior injuries and psychological diagnoses.

The panel also considered that the claim relates to events that took place some time ago and finds that the delay in appealing of less than 30 days is not significant within this context of a claim that extends back to incidents that took place a decade or more earlier, and further that there is no evidence of any additional prejudice to the Program resulting from this delay.

Taking into account all of these circumstances, the panel is satisfied on the basis of the evidence before us that the claimant has provided a reasonable excuse for failing to appeal within 30 days of receipt of the notice of reconsideration and is therefore entitled to an extension of the time for filing an appeal under the provisions of s 60(2) of the VBR. The claimant’s appeal on this question is granted.

Is the application for compensation acceptable? 

For the claimant’s application for compensation to be acceptable, the panel must determine that they are eligible to make such an application. Eligibility for compensation under the VBR is based upon the whether the applicant meets the definition of victim under the VBR and has made their application in the time required by the VBR. As noted above, for the purposes of assessing claims for compensation, the VBR provides that a person is a victim if they are injured or die as a result of an incident that occurs in Manitoba that is caused by an act or omission of another person that is a specified offence under the Criminal Code (Canada) as set out in the VBR regulations. Further, the VBR requires that an application for compensation must be made within one year after the date of the incident that results in the victim’s injury or within one year after the date when the victim becomes aware of or knows or ought to know the nature of the injuries and recognizes the effects of the injuries, and permits an extension of this limitation period where it is appropriate to do so.

Here the evidence before the panel confirms that the claimant made a report to the police in another province on September 3, 2018, and that on returning to Manitoba, the claimant made a further report to the police in Manitoba on September 26, 2018. The claimant then proceeded to make their claim to the Program in an application dated October 5, 2018. In that application, the claimant outlined that they were the victim of various offences from 1994 -2012, alleging these offences were committed by their former spouse, in Manitoba, and outlined various physical and psychological injuries that they incurred as a result.

The evidence in this claim includes the claimant’s 2018 reports to police of a number of incidents of assault by the claimant’s former spouse and one incident of counseling the claimant to commit suicide, all taking place within Manitoba. The police report of September 7, 2018 outlines the claimant’s allegations of assault, assault cause bodily harm, assault with a weapon, counsel to commit suicide, and failure to provide the necessities of life between 1997 and 2015. The panel noted that each of these offences, except for counsel to commit suicide, are within the list of Criminal Code (Canada) offences specified in Schedule A to the Regulation. The file evidence also indicates that the alleged offences did not result in any convictions, but the panel noted that conviction is not required for a victim of crime to be eligible for compensation under the VBR.

The evidence before the panel details both physical and mental injuries sustained by the claimant and relates these directly to the actions of the claimant’s former spouse, against whom the allegations of criminal offences were made. This evidence includes a report from the treating psychotherapist/family therapist received November 10, 2022 which confirms that the claimant’s “…abusive marriage resulted in many complex mental health issues [and] subsequent diagnoses.” The treating psychotherapist confirmed the claimant’s disclosures in therapy of “Domestic Violence to an extreme” which “…resulted in numerous concussions, bruising, broken bones” and “contributed negatively to [the claimant’s] mental health [and] physical challenges to date.” The evidence also includes a narrative report from the claimant’s treating psychiatrist dated April 29, 2022, which outlines that the claimant has been in their care since May 1999 and has been treated for depression since. The psychiatrist noted that the claimant “developed many physical problems due to injuries to [their] back and feet.”

After the hearing, the panel also requested and received reports from the residential program where the claimant was admitted six times between November 2016 and May 2022. Those reports confirm that the claimant was initially admitted for alcohol use disorder and PTSD, with treatment focus on substance use in the first two admissions and subsequent treatment focus, beginning in 2018, on the claimant’s PTSD symptoms arising out of a history of trauma beginning with sexual abuse as a youth, abuse by another spouse and then the abuse that occurred in the context of the claimant’s long term marriage that is the subject of this claim for compensation.

Based upon the file evidence and the claimant’s testimony, and on the standard of a balance of probabilities, the panel is satisfied that the claimant is a victim as defined by the VBR in that they sustained injury as a result of incidents that occurred in Manitoba caused by the acts of another person that are an offence under the Criminal Code (Canada) as specified in the regulations. Therefore, the claimant is eligible to make an application for compensation under the VBR.

The panel then also considered whether the claimant’s application was made on time, as required by s 51 of the VBR. The panel noted that the provisions of the Compensation for Victims of Crime Policy (the “Policy”) explicitly outline that there is no timeline expectation applicable in cases of an assault that was sexual in nature, or where the victim had an intimate relationship with the offender or where the victim was financially, emotionally, physically or otherwise dependent on the offender. Part 3.1 Statute of Limitations (Time Limit to Apply) of the Policy allows for application outside the one-year time limit in such cases. The Policy also sets out that that the primary consideration in exercising this discretion should be on the impact the delay may have on the Program’s ability to properly investigate and adjudicate a claim, and requires that a police report must be filed, and the victim must be prepared to proceed with charges if these actions have not already occurred. The Policy further provides that if an extensive amount of time has passed since the criminal injury, the claimant may only be eligible for counselling benefits.

Although the Policy is not binding upon the panel, the panel noted it provides guidance as to how the discretion under s 51(2) to grant an extension of the time for application will be exercised by the Program. The Policy provisions relating to extensions where the victim had an intimate relationship with the offender or where the victim was financially, emotionally, physically or otherwise dependent on the offender indicate that in such cases there is no timeline expectation. In other words, the Policy indicates that no time limit will apply in such cases.

This is such a case. The claim here relates directly to the claimant’s multiple allegations against their spouse with whom they had an intimate relationship, and the Policy explicitly provides that the time limit will not apply. The panel finds that this is appropriate in these circumstances, and further notes that the claimant also made a prompt report to police followed soon after by a timely claim to the Program after learning, through their residential therapeutic program of the nature and extent of their injuries and that those injuries occurred as a result of criminal actions by their spouse.

Nonetheless, the panel noted that on reconsideration, the Director of the Program gave primary consideration to the fact that the Program did not have the ability to determine the claimant’s eligibility for the specific benefits claimed as a result of the significant period of time between the criminal incident and the claim. Although also consistent with the provisions of the Policy, the panel notes that this is inconsistent with the Policy provisions in respect of there being no time limit expectation where the claimant had an intimate relationship with the alleged offender. The panel finds that the fact that the Program’s ability to determine the claimant’s eligibility for the specific benefits claimed was hampered as a result of the significant period of time between the criminal incident and the claim is more likely relevant in the Program’s adjudication under s 52(1) as to the details of any entitlement to compensation but is not relevant in this particular circumstance where the alleged offences occurred within the context of an intimate relationship between the claimant and offender and were outside the statutory limitation period.

The panel is satisfied on the basis of the evidence before us and on the standard of a balance of probabilities, that it is appropriate to exercise our discretion to extend the time for the claimant’s application for compensation and permit the claimant’s application to be accepted. The application for compensation is therefore acceptable and the claimant’s appeal on this question is granted.

The panel noted it does not appear that any determination was made by the Program with respect to the claimant’s specific benefit entitlements under s 52(1) beyond the discretionary allowance for a counselling benefit, and we therefore direct the Program to consider further whether the claimant is entitled to additional benefits and if so, in what amount.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
S. Briscoe, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 30th day of June, 2023