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 August 30, 2023 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

The claimant applied for compensation under the Program on January 16, 2023 for an incident that took place on July 17, 2020 in which they were assaulted and robbed. Following the incident, police were called to where the claimant was found, and the claimant was taken to a local hospital for treatment.

On March 10, 2023, the Program advised the claimant that their application for compensation was not eligible under s 51(1) of the VBR as they did not apply within one year of the incident. The claimant submitted a Request for Reconsideration to the Program on March 17, 2023, noting that they were in shock after the incident, and they suffered from mental health issues that made it difficult for them to remember to apply. After reviewing the application, the Director of the Program confirmed on April 14, 2023 that the claimant’s application was not eligible for compensation as they had not provided medical evidence to confirm their condition following the July 17, 2020 incident. The Director also noted the claimant was not eligible for compensation under s 54.1(4) of the VBR as they were convicted of several prescribed offences since July 17, 2020.

The claimant appealed the decision to the Appeal Commission on April 21, 2023 and a file review was arranged. Following the hearing, the appeal panel requested additional information prior to discussing the case further. When the requested information was received and forwarded to the interested parties for comment, the appeal panel met again on October 6, 2023, to discuss the appeal and render a final decision.

Reasons

Applicable Legislation

The panel is bound to apply the provisions of the VBR and the regulations under that law.

The VBR provides in s 46(1) that for purposes of determining compensation, a person is a victim if they are injured or die because 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 certain expenses as set out in the regulation if incurred as a result of the injury, as well as to 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 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 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 54.1 of the VBR sets out that no compensation is payable if the victim has been convicted of a prescribed offence, unless such a conviction was more than 10 years before the incident and the victim has not been convicted of any offence under the Criminal Code (Canada) or the Controlled Drugs and Substances Act (Canada) since they were convicted of the prescribed offence.

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 set out their position in the Appeal of Victims Compensation Decision form signed on April 21, 2023. The claimant stated that they have been struggling with their mental health since 2013. They noted that the incident on July 17, 2020 had an impact on their view of the world and that knowing that they may be entitled to some compensation got them excited. The claimant noted that they are sorry for applying too late and for the fact that they had been convicted of charges since the incident.

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 because of an incident in Manitoba caused by another person that is a specified offence under the Criminal Code (Canada) and made application for compensation as required under the provisions of the VBR. As detailed in the reasons that follow, the panel was not able to make such findings and therefore the claimant’s appeal is denied.

For the claimant’s application for compensation to be accepted, the panel must first determine that the claimant is eligible to apply. To be eligible for compensation under the VBR, the claimant must meet the definition of victim under the VBR and make their application in the time required by the VBR.

In this case, the panel is satisfied that the claimant is a victim, as the evidence before the panel, including the additional information obtained by the panel after the hearing, confirms that they were injured because of an incident in Manitoba 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.

The VBR also requires that a victim apply for compensation within one year after the date of the incident that results in their injury or within one year after the date when they become aware of, know or ought to know the nature of the injuries and recognize the effects of the injuries. The VBR allows for extension of this limitation period where it is appropriate to do so. The panel considered that the claimant applied for compensation more than 2 ½ years after the incident occurred. As such, this application was not made within one year of the date of the incident resulting in their injury, as required by s 51 of the VBR. Although the claimant noted in their submission to the Director of the Program that they were in shock after the incident, and they suffered from mental health issues that made it difficult for them to remember to apply, the panel noted that there is a lack of medical or other evidence to support that explanation.

The panel also considered whether the time for application should be extended in this case under s 51(2) of the VBR. The panel noted that the provisions of the Compensation for Victims of Crime Policy (the “Policy”) explicitly outline that there are circumstances where an extension should be granted, such as in the case of abuse and sexual abuse in the context of an intimate relationship with the person who caused the injury. The Policy also sets out 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. Although the Policy is not binding upon the panel, it provides guidance to the panel as to how the Program will exercise the discretion under s 51(2) to grant an extension of the time for application. Here, the claimant explained that they forgot to apply due to their mental health issues, but as noted above, they did not provide evidence to support that explanation. The panel also noted that although the police were initially able to speak with the claimant and helped them to obtain medical care for their head injury, the police records indicate that police were unable to follow up with the claimant after the initial contact to obtain a witness statement. The panel finds that an extension of the time for application is not appropriate in these circumstances.

The panel also noted that the claimant would not be entitled to benefits even if their application was made on time due to the fact they were convicted of numerous prescribed offences after the incident occurred, as s 54.1(2) sets out that no compensation is payable if the victim has been convicted of a prescribed offence, and the exceptions to that provision do not apply.

Based on the evidence before the panel, and on the standard of a balance of probabilities, we are satisfied that the application for compensation is not acceptable. The claimant’s appeal is denied.

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 13th day of October, 2023