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"). A teleconference hearing was held on May 7, 2020 to consider the claimant's appeal.

Issue

Whether or not the application for compensation is acceptable.

Decision

The application for compensation is not acceptable.

Background

On July 14, 2019, the claimant applied for compensation under the Program for an incident that took place on June 30, 2019 in which they were assaulted. Following the incident, the claimant returned to their vehicle to call for emergency assistance and was taken to the hospital by ambulance.

The Program determined that the claim was not eligible for compensation under s 54.1(3) of the VBR on September 30, 2019. The Program noted that a review of the Manitoba court records indicated the claimant was convicted of two prescribed offences in the previous 10 years and did not meet the requirement for an exception. On October 8, 2019, the claimant submitted a Request for Reconsideration noting that because of the incident, they were unable to work for 7 weeks and suffered financial difficulties.

On October 16, 2019, the Director of the Program confirmed the decision to deny the claimant's application. The Director found that court records indicated the claimant was convicted of two prescribed offences within the past 10 years, and therefore was not eligible for compensation under the provisions of the VBR.

On November 4, 2019, the claimant appealed the decision to the Appeal Commission and a teleconference hearing took place on May 7, 2020. Following the hearing, the appeal panel requested additional information prior to discussing the case further. After the information was received and provided to the interested parties for comment, on July 12, 2023, the appeal panel met again to discuss the case and render a final decision on the 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 the purpose of determining compensation under the legislation, 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 because of such an incident is entitled to reimbursement for expenses prescribed in the regulation that were incurred because 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 54.1 of the VBR sets out, however, that where a victim has been convicted of a prescribed offence, defined as “an offence under the Criminal Code (Canada) (the “CCC”) or the Controlled Drugs and Substances Act (Canada) (the “CDSA”) that is prescribed in the regulations”, no compensation is payable, unless the conviction for the prescribed offence occurred more than 10 years before the incident resulting in the injury or death and the victim was not convicted of any offence under the CCC or the CDSA since then.

The Victims’ Rights Regulation, MR 214/98 (the “Regulation”) sets out in s 16.1 that for the purposes of s 54.1(1) of the Act, the provisions of the CCC or the CDSA described in Schedule B to the Regulation are prescribed offences. Schedule B lists the various statutory provisions that are prescribed offences, and includes a conviction under any of sections 5, 6 or 7 of the CDSA.

Appellant’s Position

The appellant appeared in the hearing on their own behalf, making a submission in support of their appeal and providing testimony in response to questions posed by members of the appeal panel.

The appellant’s position is that their application for compensation should be accepted because they were victim of an assault, reported to the police and resulting in various injuries and loss of income. The appellant acknowledged that they were previously convicted of certain offences but stated that was a long time ago and has nothing to do with the circumstances in the present case.

In response to questions from the panel members, the appellant confirmed that they were convicted in 2009 and again in 2012 of an offence under s 7 of the CDSA. The appellant also confirmed that they were never pardoned for either conviction.

The appellant noted their belief that it was contrary to human rights legislation for the Program to take their prior criminal convictions into account, stating that their past convictions were not in any way related to the assault that took place in 2019. The appellant also stated their belief that they should at least be partially compensated for their injuries and related expenses given that the first conviction was approximately 10 years prior to the assault. The appellant confirmed that they pled guilty on each occasion and their sentence on the first conviction was a fine and community service, and community service on the second conviction.

Analysis

The question on appeal is whether the appellant’s application for compensation under the VBR is acceptable. For the appeal to succeed, the panel would have to determine that the appellant was entitled to compensation under that legislation. As detailed in the reasons that follow, we were not able to make such a finding and therefore the appeal is denied.

The panel reviewed the evidence including police reports and medical reporting and is satisfied that there is evidence that the appellant was the subject of a criminal assault that occurred in Manitoba and that the appellant meets the statutory definition of a victim under the provisions of the VBR. The evidence further confirms that the appellant was injured because of this incident and as such may be entitled to compensation under the provisions of the VBR.

The panel considered whether there are any statutory bars to the appellant’s application for compensation. We noted the file evidence indicates that on December 22, 2009, the appellant was convicted of an offence under s 7 of the CDSA, and that on June 14, 2012, the appellant was convicted of another offence under the same provision of the CDSA. The appellant in the hearing confirmed these convictions, but also noted that there was a considerable period between these events and the June 30, 2019 assault which resulted in their injuries.

The panel noted that an offence under s 7 of the CDSA falls within the list of “prescribed offences” set out in Schedule B to the Regulation and as such, the provisions of s 54.1(2) of the VBR apply here. Section 54.1(2) is explicit in setting out that “No compensation is payable under this Part if the victim has been convicted of a prescribed offence”; however, the panel also noted that s 54.1(3) outlines that an exception may be made if the conviction occurred more than 10 years before the incident that resulted in the victim’s injury and the victim has not been convicted of any offence under the CCC or the CDSA since they were convicted of the prescribed offence. In the present case, the appellant’s first conviction of a prescribed offence occurred less than 10 years before the June 2019 assault, and further, the appellant was convicted of another offence under the CDSA after the first conviction. In the result, the panel is unable to find that the exception set out in s 54.1(3) of the VBR applies to the appellant, and therefore we are bound by the provisions of s 54.1(2) which states that no compensation is payable in these circumstances. While the panel acknowledges the appellant’s concern that the application of this provision of the VBR is unfair in that it has a discriminatory effect upon them based upon their prior criminal record, we also note that the statute explicitly allows for exceptions to the general exclusion but that on the facts here, the appellant does not qualify for an exception and there is no statutory discretion to extend the exception beyond the outlined provisions.

Based on the evidence before the panel and on the standard of a balance of probabilities, we are satisfied that the appellant is not entitled to compensation under the provisions of the VBR and therefore the application for compensation is not acceptable. The appeal is denied.

Panel Members

K. Dyck, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 25th day of July, 2023